Property (financial) settlement refers to the division of a couple's financial resources on separation.
In Australia the Family Law Act (1975) regulates the division of property or liabilities (debts) of people who have been married.
However, if you are not married i.e. in a de facto relationship your local state laws will determine what happens.
What Is Defined As Property?
Property can include:
- Real estate
- Land
- Savings in banks, building societies, credit unions of other financial institution
- Investments
- Life insurance policies
- Businesses including partnerships or companies
- Household contents
- Superannuation
- Any personal items
Any debts also need to be calculated and taken into consideration.
Does It Matter Whose Name The Property Is In?
Essentially no! Property held in the name of either spouse comes within the definition of matrimonial property and will be taken into account by the court.
When Can We Split Our Assets?
Unlike applying for a divorce, property matters can be addressed at any time following separation (I.e. you Don't have to wait 12 months).
But you only have 12 months from the time of your divorce (decree absolute) to file an application for property settlement or spousal maintenance. In very special circumstances it is possible to get permission from the Courts to file an application after this period of time.
To find out more please visit the
Family Law Courts website.
What Do The Courts Consider When Deciding How Property Is Split?
The Courts are guided by the Family Law Act (1975) when deciding how matrimonial property should be divided and will take into consideration:
1. The financial contributions made by both parties. This will include:
- Property owned at the time of marriage
- Money contributed before or during the marriage
- Gifts and inheritances
- Efforts put into building up and running a business
2. Non-financial contributions such as:
- Work done on the property
- Being the homemaker and parent
3. The future needs of both parties. Factors that influence this include:
- The age and health of both parties
- The ability for each individual to support themselves
- Whether your supporting other people (such as children or relatives)
- Whether they are being supported themselves (such as a new partner or parents)
- Superannuation entitlements
How Do I Achieve A Property Settlement?
Property Settlement can be achieved through many different negotiation processes including:
- Informal discussions
- Mediation
- Collaborative law
- Arbitration
- Traditional family law
If you are both agreed you can formalise your agreement and apply to the Family Court to have them turned into Consent Orders.
How To Achieve A Property Settlement If You Don't Agree
If you can't agree on the division of your property and have tried Family Dispute Resolution (formerly known as Family and Child mediation) then you can ask the Family court to decide by making an application for property settlement.
To read more about
Family Dispute Resolution click here.
Agreements made during family dispute resolution can be turned into consent orders. If family dispute resolution is unsuccessful you can apply for a Property Order from your local Courthouse or Family Court Registry.
You should get legal advice before preparing these documents and going to court.
Do We Need To Formalise Our Property Settlement?
In Australia you're not legally required to formalise your matrimonial property settlement (when it goes through the legal process they are called Consent Orders).
Nonetheless it's a good idea to formalise the agreement as once the court approves your Consent Orders neither of you can seek further property settlement. A court approved agreement may also be exempt from state duties and taxes.
If you would like your agreement to be formalised, you can apply for
Consent Orders in a family court or local court.
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