When a relationship and shared lifestyle ends, it is complex and confusing to determine who will get the ownership of property. This should not be determined purely based on legal ownership or financial contribution, but should also take into consideration other ways that you have contributed and what your future needs will be.

It is also important to understand the future financial consequences of your settlement, for example, it may be more advantageous to hold onto one type of asset over another. Our lawyers understand how to advocate for you in order to help set you up for your future.

When can I obtain a property settlement?

A property settlement involves dividing assets, financial resources and debts between a couple whose relationship has broken down. It legally finalises their financial affairs and enables the parties to move on with their respective financial activities. A finalised divorce is not required in order to proceed with the division of assets, and de facto couples are also eligible for property settlements under family law legislation.

The following time limits apply for property applications made to the Federal Circuit and Family Court of Australia:

• for de facto partners, any court proceedings for a property settlement must be commenced within two years of separation;
• after a divorce is finalised there is a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance.

What can be included in a property settlement?

Property includes a wide range of assets and financial resources for example:

• Real estate
• Bank accounts and cash
• Shares
• Cars
• Trusts
• Superannuation
• A family business
• Inheritances
• Loans and debts

A property settlement will include property that you entered the relationship with, property acquired during the relationship and property acquired after separation.

What steps are involved?

As in other areas of family law, the parties may come to an agreement between themselves. Most family law property settlements are finalised without going to court, which should only be considered as a last resort. When parties come to an agreement they can simply leave it as an informal agreement or document it through consent orders or a binding financial agreement.

An informal agreement is not binding and cannot be enforced.

Consent orders are filed with the Court and if the Court believes they are just and equitable the Court will make the orders, which makes them legally binding. It is important to receive legal advice before agreeing to consent orders.

A binding financial agreement is a written agreement between the parties that must comply with certain formal requirements to be valid. Both parties must receive independent legal advice before entering into a binding financial agreement.

There is no set formula for the distribution of property in Australia. If your matter goes to court, the Court will consider and weigh the following factors. These same principles should be followed when the parties agree to a settlement between themselves:

• What are the parties’ assets, liabilities and financial resources;
• What were the parties’ respective direct and indirect financial contributions;
• What were the parties’ parenting, homemaking and non-financial contributions to the relationship;
• What are the parties’ future needs, considering their relative earning capacities, state of health, education and responsibilities as primary carer of any children;
• What is just and equitable when considering all the circumstances.

A property settlement after the breakdown of a marriage or de facto relationship can be resolved by consent orders, financial agreement or court proceedings, when absolutely necessary. No matter what process is used, it is important to formalise your property settlement to finalise your affairs, obtain any relevant stamp duty exemptions, protect future assets and move forward with your life.

If you have recently separated from your spouse or de facto partner, we can explain your rights and assist you to achieve a fair division of property that takes into account your individual circumstances and future needs.

If you need advice or assistance, contact [email protected] or call 1300 110 080 to speak to an expert.