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Property Division Between Separating Couples

We provide specialist advice with respect to all facets of the division of property between separating couples, whether they were married or de facto, as well as spousal maintenance.

We can advise you about how property settlement works and what would be a fair outcome for you, including your entitlements and obligations.

We can work with you towards achieving a fair resolution with the other party without the stress and cost of litigation, whether this is through negotiations directly with the other party or participating in mediation to try and resolve the outstanding issues.

If negotiations are unsuccessful, our highly skilled lawyers can represent you in Court including the procedural steps as well as appearance in Court.

If you have been served with Court documents, we can assist you to navigate the Court documents, court practices and procedures and assist you to resolve the matter with minimal further litigation.

Where the parties have an agreement, we advise as to whether those agreements are fair, and assist the parties to enter into an agreement or court orders which will make that agreement legally binding. You should note that agreements that do not meet the strict requirements set out under the Family Law Act are not binding, and leave open the possibility of either party asking for a further share of property or superannuation (even if both parties signed a document, and even after the property has been distributed).

If you have any questions, please contact us or book an appointment for a free 30 minute consultation with our specialist family law team.

Agreements for property division can be made legally binding (and should be!)

Once you reach an agreement about how to divide up the assets, superannuation and debts of you and your ex, this is not legally binding for enforceable unless you formalise this. You can formalise your agreement to property division or property settlement in a legally binding way, whether you were in a marriage or de facto relationship, by entering into a;

  • Consent Order; or
  • Financial Agreement

Both documents will financially separate you from your ex. Unless you formalise the agreement in one of these ways, either you or your former spouse or partner can still apply to the Court for property settlement (right up until the time limit).

Some of the key features of these documents are;

What is a Financial Agreement? What is a Consent Order?
This is a contract signed by both parties as to how the assets, liabilities and superannuation of the parties is divided between them. This is an Order made by the Court based on the consent, or with the agreement, of the parties.
Financial Agreement is not filed in Court at any stage.

Documents are filed in Court which are signed by both parties to show they are agreed (“by consent”).

The Court will grant the Order if it considers the order “just and equitable”.
You must both have independent legal advice from a solicitor before you sign the Financial Agreement. The parties are not required to have solicitors (though we recommend you have a solicitor prepare the court documents as the Order itself is particularly complex).
You can include a superannuation agreement which provides for the splitting or transfer of superannuation between partners. You can include Orders for superannuation splitting, ie the transfer of superannuation from one partner to another.
The Financial Agreement is binding once you both sign. The Order is binding once it is granted by the Court.
You can receive exemptions, such as from transfer duty for the transfer of property, and CGT rollover relief You can receive exemptions, such as from transfer duty for the transfer of property, and CGT rollover relief
The Financial Agreement can be enforced in Court The Consent Order can be enforced in Court.

 

Do I have to wait 12 months? Is there a time limit?

You can start property settlement immediately after you separate, you do not have to wait at all. We strongly recommend you take steps to get advice and divide the property pool sooner rather than later.

There are time limits for applying to court for property settlement –

  • For married couples, this is 12 months after your divorce
  • For de facto couples, this is 2 years from separation.

If you do not file an application to Court within these times, you will need the permission of the Court to bring your application. This is not a straightforward process.

If you are out of time already, you should seek legal advice immediately.

Why come to us for property settlement?

Apart from having specialist and highly experienced family lawyers available to assist you, we are a “one-stop shop” and can assist you to settle all of your legal issues.

Once the property settlement has been completed, our specialist commercial and property law team can assist you with the transfer of sale of the house.

Our specialise wills and estates team can advise and assist you about updating your Will and Enduring Power of Attorney, any Binding Superannuation Nomination or other forms. If you don’t have one of these, we can assist you to make sure you have your affairs in order.

If I have more questions, what can I do?

Please don’t hesitate to Book an appointment for a free 30-minute initial consultation with one of our specialist family lawyers or by calling us on (07) 5576 9999.

Frequently asked questions by our clients

What is property settlement and how does it work?

Property settlement is the process of identifying the “property pool” and dividing that up fairly between you.

Please feel free to download our free brochure on property settlement: Property Settlement (v2)

What is the Property Pool?

The property pool is all of the assets, superannuation and debt of the parties to a relationship or marriage, whether in sole or joint names, at the current date. There is a common myth that property settlement means dividing up what you had jointly when you separated. This simply isn’t the case. This is why we recommend sorting out your property settlement as soon as you can.

What if I don't know what property my ex has or I suspect they are hiding property? Do I have to give my ex financial documents?

Both parties, even during negotiations, have an obligation to provide full and frank disclosure of their financial circumstances to each other.

If there is a dispute about the value of something, we can assist to obtain valuations to settle the dispute or look at what other documents are necessary to determine the value.

If this is not taking place, there are steps we can take within Court proceedings to obtain financial documents.

How is the property pool divided up?

There is no automatic 50% / 50% division in Australia. If the Court considers it appropriate for there to be property settlement, then the Court uses a 4 step process to determine what each person should get in property settlement. This is what we use to advise you as to what your entitlement may be if the matter went to court and what is a fair outcome for you.

When determining the percentage each of you should receive from the property pool, the Court will consider;

  • the contributions each of you has made (this includes not just financial contributions but non-financial contributions as well such as homemaking and caring for children);
  • the future needs of each of the parties; and
  • Any other relevant factor.
How is property, superannuation and debts divided? Do I have to sell the house?

Property settlement doesn’t mean everything has to be sold.

We look at how your particular pool could be divided to achieve a fair outcome. This can include transferring superannuation between former spouses or partner (called “super splitting”) or making adjustments in assets or debts.

If any property you have is subject to a mortgage, we can assist you to navigate whether the house needs to be sold or not and how this can be dealt with in settlement.

Outcome – financial freedom from your ex!

The outcome of property settlement should be that you and your former partner or spouse are completely financially separated.

Once property settlement has been formalised, either by a Consent Order, Financial Agreement or other Order of the Court, you are free from any claim from your former partner and you cannot bring any claim against them.

Financial Issues including:
  • Property Division – divorcing couples as well as de facto relationships
  • Dividing (or “splitting”) Superannuation, including self-managed superannuation funds
  • Spousal maintenance
  • The effect of Family or Unit Trusts and “Pre-Nuptial” Agreements on property entitlements
Urgent applications when:
  • One party is out of time to bring an application
  • One party is trying to hide or dispose of property
  • Spousal maintenance is required

Meet the team

Ruth Jeffers

Special Counsel

Alexandra Coyle

Senior Associate

Emily Molloy

Law Graduate

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What our clients have to say

Chelsea Baker, solicitor at Robbins Watson, has been looking after the administration of our late mother’s estate. Chelsea (and her team) has been very professional, prompt and friendly. She was very knowledgeable and thorough, in explaining everything and providing all the necessary legal documents and advice. We have been very happy with the service provided and would highly recommend Chelsea and her team at Robbins Watson Solicitors

AI & LB

Thank you to Sylvia Hoefnagels for guiding me through an Estate issue. Sylvia was direct, always courteous , very efficient and understanding. I will not hesitate to contact Robbins Watsons Law firm should I require further legal advice

Catherine Scally

Thanks to the wonderful assistance of Robbins Watson, we have come to the conclusion of matters for my Father and his Estate… on behalf of my Mother and my brothers we are so grateful for the kindness and guidance shown by Chelsea and yourself, Allison, in all you have done. Thank You.

G

Thank you so very much for your help to see this finalised today Adam !!!!! A very emotional day for me, and I am so grateful for all you have done to push this through.

E.S

Just wanted to say a huge thank you to Sarah and the team at Robbins Watson for helping me with my separation recently. Sarah was exceptional in all her dealings with the separation and put my mind at ease throughout the entire process. It was a challenging time however Sarah had it completely under control and achieved a great result allowing me to move forward with confidence. Sarah was very professional, compassionate and supportive the whole way through. Thanks again Sarah for all that you do.

Family Law Client

Marcus, thank you again for your support throughout the settlement process, we very much appreciate your professionalism, advice and communication from start to finish! We would be happy to recommend Robbins Watson to our family and friends.

Angela

Good morning – just wanted to send a quick email off and let you know how impressed (my wife and myself) have been with Emma – We have bought a couple of properties up there over the last year or two – we’re from Wagga Wagga, NSW and are relocating up there at the end of this year. Emma has been absolutely fantastic to deal with and we couldn’t be happier!!! It makes things really easy when you have someone on the ball like she is – so yeah, just a quick ‘Well done’ – thanks so much, we really appreciate it and keep up the good work!

Jarrod

Thank you again for your services, I cannot fault you and your team. You are always such a pleasure to deal with and make what would normally be a stressful time, quite the opposite.

Emma (& Helen)

Please extend my warmest thanks to All that have assisted me. You all have made the process of dealing with Wills, selling property, and soon with my own Will and things. Robbins Watson have exceeded my expectations in ability, personal interactions, pleasant meetings; in short, you are my Solicitors of choice, and I say so to any and all.

George

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