Property Settlement in Family Law

When couples separate, whether married or de facto, they usually need to divide their assets between them.

This is known as a family law property settlement.

The term property is broad and refers to any capital assets, including real estate, superannuation, motor vehicles, cash, investments such as shares and cryptocurrency, as well as liabilities such as mortgages and credit card debts.

Married couples have 12 months from the date of their divorce to make an application to the Court for a property settlement.

De facto couples have 2 years from the date of their separation to make an application to the Court for a property settlement.

The process of a property settlement can commence once a couple has separated and is often finalised before a married couple is officially divorced.

Once the time limit has passed, an application for property settlement can only be made with the consent of each party, or with the Court’s permission to apply outside the limitation period.

If the parties are able to agree on a property settlement they can then:

1. Enter into a Financial Agreement; or
2. Have the Court approve the agreement by making Consent Orders.

Where the parties cannot agree on a property settlement, an application can be made for the Court to determine the division of property.

The division of property by the Court is usually a complicated process, which commences with the Court assessing whether it is just and equitable for there to be a property division. This is because, in limited circumstances, there may not be a need for a property settlement, particularly if the relationship was short or one party has not made a contribution toward the asset pool.

When determining a property settlement, the Court will consider the contributions made by each party to the asset pool and can include both financial and non-financial, such as those that relate to the care and welfare of the family.

After assessing the contributions of each party, the Court will then consider and assess the future needs of both parties, taking into account a range of factors, including their age, their ongoing health, their income and capacity for future earnings, and responsibility for the care of any children.

A property settlement, particularly one which is litigated, can be a highly technical and highly emotionally experience. Parties should retain experienced family lawyers to guide them and ensure that their interests are protected.

Berry Family Lawyers have the expertise and empathy to get you through this difficult time.