Divorce Property Settlement

Once you have made the decision to divorce, you will then need to determine how to divide the marital assets.

Divorce Property Settlement

There are many factors that determine how to distribute your assets in a marriage breakdown.

    1. Length of the marriage
    2. Financial and non-financial contributions
    3. Number and age of dependants
    4. Future needs
    5. Future income potential
    6. Who is the primary carer of the children
    7. Pre-nuptial and Binding Financial Agreements (see our section on BFA’s)
    8. Complexity of unraveling complicated financial structures, such as companies, trusts & partnerships

Our Family Lawyers can advise you on how divorce property settlement works, and what will need to be done to transfer the ownership of assets between you and your partner once agreement has been reached.

Divorce Property Settlement

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There are time limits for applying for property settlements.

In a Divorce, you must start property proceedings within 12 month of your divorce becoming final.

If you were in a De facto relationship, you need to have commenced property proceeding within two years of the separation.

It is best to commence property proceedings as soon as possible to give you and your legal team time for discovery and documentation of all assets in the marriage.

If you are coming close to your deadline you could be rushed into accepting a lesser settlement as you may not have the time to prepare your submission fully.

Call our caring and experienced Family & Property Lawyers to ensure you get the best outcome possible in your Property Settlement.

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Remarrying or entering into a new De-Facto Relationship

If you wish to remarry or commence a new de facto relationship and are concerned about your assets, we recommend making a new Will and set of Powers of Attorney and revoking your old Powers of Attorney.

Please see our section on Wills & Estate Planning and Powers of Attorney or phone to speak with one of our Divorce Property Settlement Lawyers.


Divorce Property Settlement FAQs


Q. My EX is claiming property rights from our de facto relationship. Is this possible?

“My partner & I were living together for more than 2 years and now she has left me and is claiming half my assets. What can I do to stop her?”

The law states that any couple living together for at least 2 years, is deemed to be in a de facto relationship. There are many factors that will impact on how the asset pool is calculated and divided eg. what assets were brought into the relationship, financial contributions, non-financial contributions, gifts, bonus & inheritance. You will need the assistance of an experienced family and property lawyers to fight any claim on your assets.

Q. How do you fairly undertake a property settlement after separation, when only one party has been in charge of the family finances?

“My husband and I have just split up and I need help to unravel the complicated web of companies and trusts my husband has set up in order to protect our assets and minimise tax. How do I go about this?”

Often when a couple separates, the party who has not been in control of the finances has little knowledge of what the actual asset ownership is, especially if the other party has been running a business or has set up a complex legal structure of companies and trusts to protect assets and minimise tax.

We can assist you to discover the extent of the assets and liabilities and obtain the necessary documentary evidence to support the actual financial position. Call us on 9500 1722 to discuss what steps can be taken to get a full picture of the family finances so that you can achieve a satisfied outcome of property settlement.

Q. Is an inheritance part of the relationship pool?

“I received an inheritance from my Mum just before we separated. Does this form part of the relationship asset pool?”

Does an inheritance form part of the relationship asset pool in a divorce? What are the critical factors?

  • The date the inheritance was received
  • It’s size in relationship to the total asset pool
  • If there are children from the partnership
  • If the inheritance was used to pay of debts such as the mortgage on the family home
  • If the inheritance was quarantined from the rest of the asset pool.

As there are many variables in determining this question and given that rulings can go both ways, it is best to seek legal advice immediately.
Our Family Lawyers can look at your specific circumstances and advise you accordingly.

Q. The Family Court and Lawyers – Are they really necessary?

“Do we need a Lawyer and to go to Court if we both VERBALLY agree on a property settlement?”

An informal property settlement agreement at the time of separation may appear to be the quickest and least expensive option in the first instance, particularly when both parties are in agreement. However, informal property settlement agreements are not legally binding and you remain at risk of your former partner applying to the Court many years later, seeking for a higher split of the property pool. There would also potentially be significant legal costs incurred by you in the future in defending this application.

A family law property settlement agreement is legally binding if you:

Submit a jointly signed Consent Order to the Family Court of Australia; or
Have in place a jointly signed Binding Financial Agreement.

The above options are a far cheaper and simpler way of ensuring your divorce property settlement agreement is final and enforceable between you and your former partner.

By engaging one of our experienced Family Lawyers, we will help you choose the best option for you and draft all the necessary documents, so that you will have peace of mind that what is agreed upon NOW will be binding on you and your former partner in the FUTURE.

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