If you have recently separated from your spouse or de facto partner, you should seek advice at an early stage about your entitlements to a property settlement. The breakdown of a relationship brings about many changes and it is important that you understand what steps need to be taken to achieve a just and equitable property settlement as well as how a final division of property may look in your particular circumstances.
We are experienced in family law property matters and represent clients from all backgrounds. We will ensure that we understand your issues and objectives before offering practical, strategic and timely solutions.
We can assist you to address the following family law property issues:
- negotiating urgent financial support following separation including spousal maintenance and interim property settlements
- complex matrimonial property matters involving trusts, companies, cross-border issues or rural properties with farming enterprises
- property settlements involving smaller property pools such as a small business or a single major asset such as a residential property
- obligations in relation to future financial support for a spouse or children including spousal maintenance and child support, and prepare and advise clients on financial agreements in relation to these issues
- protection of assets where clients are remarried or entering into a new relationship through binding financial agreements
We often work with other professionals such as our clients’ accountants or financial planners to ensure that a property settlement is tailored to meet their individual financial structure and takes into account taxation and asset planning requirements.
When can I start finalising the division of property?
You can start the process of finalising a property settlement as soon as you separate from your spouse or de facto partner. You do not have to be divorced or separated for a specific period of time before you can do so.
It is important to note however that if you need to commence court proceedings there are time limits that apply. Generally, proceedings must be commenced within 12 months of a final divorce order being made and within 2 years of ending a de facto relationship. These rules are very specific and only in exceptional circumstances will a court grant leave for an extension of time.
Will I need to go to court to finalise my property settlement?
There are certain pre-action procedures that are required to be undertaken before you can start a court proceeding. These include making a genuine attempt to resolve your dispute through negotiation, disclosure of relevant documents and attending mediation or family dispute resolution In most cases we will be able to assist you to resolve your property matter without the intervention of the court, which saves both parties time and money.
If you have recently separated, we recommend making an appointment with us as soon as possible so we can work towards finalising the division of your property.
If you and your ex-partner have already reached an agreement on how your property should be divided then we can explain how the proposed arrangements will affect you, flag any potential issues and then advise you on the most appropriate way for the agreement to be formalised. This may be through a financial agreement or consent orders, neither of which will require you to attend court.
If you are having difficulties reaching an agreement, we can help negotiate a settlement through your ex-partner’s lawyer. If no agreement is reached, or the matter is very complex, going to court may sometimes be the only option. In this event, we try to minimise the issues in dispute to avoid excessive fees.
Working out a just and equitable division of property
When negotiating a property settlement and providing advice to clients, family lawyers will usually adopt the steps that would be taken into consideration by a court in deciding such matters, namely:
- Identify the assets and liabilities – the court will require all assets and liabilities to be identified to establish a ‘net asset pool’. This includes superannuation entitlements and assets held jointly, individually, in partnership or through trusts or companies
- Identify the direct financial contributions made by each person to the acquisition of assets or their preservation, improvement or maintenance
- Identify the indirect financial contributions made by each person, for example, the giving up of a career to allow the other person to further their own career
- Identify the non-financial contributions made by each person, like caring for children, being the homemaker and maintaining or improving assets by personal exertion such as renovations
- Identify the future needs of the parties in consideration of their respective ages, health, financial resources, superannuation, care of children under the age of 18 and income earning capacity
After considering the above the court determines a division of property that is ‘just and equitable’ in the circumstances. No particular factor is given priority, meaning that someone who is the sole income earner will not necessarily be entitled to a greater share than the other person, who was a stay at home parent.
Family law is complex and discretionary – no two cases are alike, and it is important to obtain independent legal advice tailored to your individual circumstances, from an experienced professional.