Property Settlement Lawyers

Property settlement lawyers assist individuals undergoing separation by providing advice and representation on the division of assets.

Specialising in this legal area, they offer advice on entitlements, navigate the process, explore available options, suggest strategic approaches, manage negotiations, and draft documents finalising agreed terms.

Upon the dissolution of a marriage or de facto relationship, the division of the couple’s property, financial resources, and assets becomes necessary. 

Property settlement encompasses not only real estate and bank accounts but also extends to shares, vehicles, investments, cryptocurrency, and superannuation.

What is a Property Settlement?

Property settlement involves the allocation of assets subsequent to the breakdown of a marriage or de facto relationship. 

“Property” in this sense can cover any financial asset jointly or individually owned by you and your partner, including:

• Cash or personal savings
• Stocks, shares, or bonds
• Superannuation funds
• Real estate properties, whether in Australia or abroad
• Personal belongings like cars, jewellery, or antiques
• Investments or trusts associated with a business
• Interests in trusts or estates

Given the uniqueness of each case, the entitlements during separation or divorce are determined based on what is deemed ‘just and equitable’ by law for your specific circumstances. 

In simple terms, the legal procedures for determining the equitable division of assets are generally consistent, whether you were married or in a de facto relationship.

One common misconception among our clients is the belief that assets will be evenly split 50/50, which is not always the case.

The Property Settlement Process

Our lawyers generally follow these steps in working through the property settlement process. 

Step 1 – Asset Definition:

Upon allocation to one of our attorneys, we commence by compiling your balance sheet and asset pool table. Complete financial disclosure from both parties is essential.

Step 2 – Exploring Options:

Our legal team will collaborate with you to explore various outcomes and entitlements.

Step 3 – Reaching Consensus:

We facilitate the negotiation process, presenting offers and engaging in mediation as necessary. We carefully address objections and seek potential resolutions.

Step 4 – Legal Formalisation:

Our lawyers will formalise the agreed-upon terms, either through a formal Agreement or Consent Orders.

How is Property divided?

The courts possess extensive authority to issue orders for dividing the property of individuals in a de facto relationship or marriage. This authority extends to all property existing at the time of court consideration for the appropriate settlement. 

For instance, properties owned by one spouse before the commencement of the de facto relationship or marriage are subject to division by the court. There’s no specific “rule” limiting property division to assets existing at the time of separation. 

Therefore, if additional property is acquired after separation, the court can distribute these assets with the former spouse or partner if it deems such action to be just and equitable.

The Family Law Act delineates a framework for the exercise of court discretion, which typically follows a four-step process.

Step 1: Identifying the Property Pool

At the outset of a property settlement, it’s essential to ascertain the value of the parties’ existing legal and equitable interests. 

During our initial consultation, we’ll discuss the property and financial resources of both you and your spouse or former de facto partner. Determining which assets form part of the property pool and what qualifies as a financial resource depends on the specific circumstances of each case. 

The definition of “property” is comprehensive, encompassing almost any valuable asset to which a party is entitled, exercises control over, or has the power to obtain. 

This includes assets like real estate, shares (including those in private companies), vehicles, jewellery, savings, furniture, and effects. Superannuation is treated differently, and depending on the type and value of the fund, it may be divided (or split) at the time a property settlement order is made. 

The court also considers the “financial resources” of the parties, which may include funds or assets over which a party has influence or control, or prospective entitlements. However, it’s important to note that the court lacks the authority to redistribute financial resources between separating spouses, as its jurisdiction is limited to redistributing property.

Step 2: Assessing Contributions

The second step involves evaluating the respective contributions of the parties before, during, and after the relationship. This includes financial and non-financial contributions, as well as contributions to the family’s welfare. The court may adopt either a Global Approach or an asset-by-asset approach when assessing contributions, depending on the case’s particulars. 

This assessment is not a simple arithmetic exercise; contributions are often deemed equal in many relationships, even in cases where there was an income disparity. Initial contributions made by either partner before the relationship began, as well as any inheritances or gifts received during the relationship, are considered in determining a fair property settlement. 

After assessing the contributions, the court awards each person a percentage share of the assets based on their contributions to the relationship.

Step 3: Considering Future Needs

Next, the court evaluates the parties’ respective future needs to determine whether an adjustment in favour of either party is warranted. Future needs may include factors such as age, health, care responsibilities for children under 18, and earning capacity. 

The court takes into account various aspects concerning each party, including their income, assets, financial commitments, and living standards. If an adjustment is deemed necessary, the court may award one party an additional share of the assets.

Step 4: Ensuring Justice and Equity

In the final step, the court examines the assessments made in the previous three steps to determine whether the percentage division results in a just and equitable order.

How can a property settlement be formalised?

Consent orders

Consent Orders represent a formal agreement between you and the other party, outlining the agreed-upon terms. If both parties can reach an agreement without the need for a trial before a judge, Consent Orders can be submitted to the Court. 

These Orders are accompanied by an Application for Consent Orders and a letter to the Court addressing matters of justice and equity. 

If your case is already before the Court and an agreement is reached with the other party, the terms can be formalised in Consent Orders. These Orders are typically determined by a Judge or Judicial Registrar in Chambers or presented at the next Court date without the need for an Application for Consent Orders. 

Consent Orders are widely regarded as the most cost-effective and efficient method of documenting agreements related to property settlement.

Binding Financial Agreement 

A Binding Financial Agreement functions as a written contract between you and the other party, delineating the agreed-upon terms. Unlike Consent Orders, however, a Binding Financial Agreement doesn’t require submission to the Court.

To ensure the validity of a Financial Agreement, strict requirements must be met. Both parties must receive independent legal advice regarding the agreement’s implications on their rights, as well as the advantages and drawbacks of entering into it. Once deemed binding, the Agreement extinguishes the parties’ rights to seek Court intervention in settling property matters.

We can offer guidance on whether a Binding Financial Agreement is suitable for your situation and assist you in preparing the necessary documentation.

Court Order

If the parties cannot reach agreement for Consent Orders, they can take the matter before a Judge in the Federal Circuit and Family Court of Australia. 

This can be a lengthy process, and the Court will use every opportunity to get the parties to agree before the matter is brought before a judge.

Our Property Settlement Package

We understand that navigating separation and divorce can be emotionally exhausting. Our main goal is to empower you while minimising unnecessary stress and drama. Your best interests are always our foremost concern.

This isn’t a do-it-yourself solution; we’re a full-fledged law firm, and our lawyers will guide you closely throughout the entire process.

Our service is tailored primarily for those who are relatively amicable, nearing agreement on how to separate their affairs now that they’ve chosen to move forward from their relationship.