Services > Property Settlement
The breakdown of a relationship is a difficult time. We can guide you through the legal issues associated with property settlement and division of your assets, which arise on separation.
How can you legally divide up your property after separation?
The only enforceable ways to divide up your property following separation are as follows:
Agreeing on your division and finalising the agreement in a binding financial agreement (commonly known as a separation agreement);
Agreeing on your division and finalising it in consent orders; or
Applying to Court for property orders.
Why can’t I just agree on my division with my partner or spouse?
You certainly can agree on who gets what, and it is great if you have agreed division and resolved this fairly between you. However, for this agreement to be binding, it needs to then be drawn up into either a binding financial agreement or consent orders.
If you simply agree matters between you, without taking this further step, your agreement is not binding. There is no certainty for you and no clean break.
Following division of property, assets which one party has kept under the agreement may increase or decrease in value. Sometime later, you or your ex-partner may be able to argue successfully in Court for a different property outcome. Property division that may have previously been fair may no longer be so, and a Court may decide that property should be divided differently.
How do I go about getting a binding financial agreement or consent orders?
We can provide clear advice on which option is better for you, and an estimate of costs.
We can negotiate the terms of the agreement with your ex-partner or their lawyer.
The first step is working out the total assets and liabilities. You and your ex-partner will need to provide details and documents setting out values of property and debts.
Certain assets may need valuations – such as real estate, business shares and motor vehicles. Estimates of value may be enough in some cases.
If you are contemplating splitting your superannuation, information will need to be obtained from your superannuation fund as to whether this is possible. Sometimes, independent valuations of superannuation interests are necessary, but often you can rely upon values shown in member statements.
Once you have details of all the property, we can guide you on the best outcome for you, having regard to your particular circumstances.
How are binding financial agreements different from consent orders?
A binding financial agreement is a specific written agreement, which you can enter into to divide property or define financial support. The requirements for a binding financial agreement are set out under the Family Law Act 1975. They include the following:
Each party needs a separate independent lawyer.
Full disclosure of assets and liabilities needs to be provided.
Each lawyer will need to give independent advice to their client on the advantages and disadvantages of the agreement; and
Each lawyer certifies on the agreement that they have done so.
For consent orders, there is no need for your partner to obtain legal advice (although it is recommended). There is a filing fee for the application for consent orders. Once filed, the Court maintains oversight when the draft orders are filed and needs to be satisfied that the proposed orders are “just and equitable” before making the orders.
Consent orders can be a better option in some cases, as they are easier to enforce if one party fails to do something under the agreement (for example, transfer assets to the partner). We can advise you on the best option in your case.
What if we don’t agree?
If you don’t agree on division, you may have to make an application to Court to make orders for property division.
There are strict time limits for applying to Court for division of property. If negotiations are unsuccessful, you must file your application for orders for division of property within 12 months of your divorce, or within two years of the breakdown of your de facto relationship. If you apply outside of this time, the Court may refuse to hear your case.
When should I seek advice?
We can provide preliminary advice if you intend to separate, or after separation.
It can be helpful to seek advice as soon as possible. You may need to take steps to protect assets, or you may need to reach agreement on who meets ongoing expenses. We can advise you on your options and guide you through the process.
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