Splitting the Assets: Property Division & Settlement

Negotiating a fair property settlement following divorce or de facto relationship breakdown can be very complex. Our property settlement lawyers have specialist expertise in this area and are skilled in helping you safeguard your interests.

Property Settlement Lawyers

Negotiating a fair property settlement following divorce or de facto relationship breakdown can be very complex. Our property settlement lawyers have specialist expertise in this area and are skilled in helping you safeguard your interests.

Where possible, we seek to negotiate a satisfactory property settlement without the expense and complication of litigation. If going to court is unavoidable – or if it is the best option to help you secure a favourable outcome – our team of experienced family lawyers are highly skilled in representing your interests and conducting your case at court.

We have a particular understanding of small business. This enables us to deal with cases where businesses, trust structures and corporations are involved. We have strong links with relevant experts such as valuers and forensic accountants who can assist in preparing your case.

Assets that are considered in a divorce property settlement include property (your home and any investment properties), business interests, superannuation, investments, shares, motor vehicles, incomes and life insurance policies to name a few.

The courts consider a range of factors when determining the division of assets in a property settlement. These include the financial contribution made by either party before and during the marriage or de facto relationship, non-financial contributions such as homemaking and care of dependents, the future needs of spouses and the availability of new sources of financial support (such as assistance from parents or a new partner).

We draw on our in-house expertise in the area of property law and estate planning in helping to steer a satisfactory long-term outcome for our clients.

Frequently Asked Questions

What is the difference between a financial resource and an asset? Are they both included in property settlements?

A financial resource is something which is not yet property but has a future financial benefit or the ability to generate income in the future. Some examples include an interest in a trust, the ability to borrow funds, long service leave, a future pension entitlement, an anticipated inheritance, overseas superannuation and also tax losses.

An asset is something you can dispose of right now (perhaps on some conditions e.g. a share in a company) and receive a payment for.

An asset or ‘property’ includes real estate, cars, bank accounts, shares, interests in businesses, cash, jewellery, jointly owned property with another person, artwork to name a few.

Both categories are considered in property division.

We have agreed – do we have to go to Court?

No, two pathways are available, neither of which requires attending the Court:

  • A Binding Financial Agreement setting out any deal reached; or
  • A “Consent Order” setting out the agreement lodged at Court but which does not require Court attendance.

Isn't it 50/50?

50/50 rarely applies – if you have no children, both spouses are the same age, have the same salary and started the relationship with exactly the same amount and are both healthy – just maybe, 50/50 might be correct – otherwise hardly ever.

He didn't contribute to my super, it's mine isn't it?

Probably untrue. To determine what is fair we consider all the homemaking and parenting contributions as well as economic ones. If one spouse was working and the other at home, the super isn’t ‘hers’ or ‘his’, the stay at home dad may qualify for some of the super. It’s “our” super. But fundamentally it depends on what total is available.

How long do we have to be separated before we can divide our assets?

You can do your property settlement and divide your assets as soon as you separate. There is no 365 day waiting period (like there is for obtaining a Divorce).

Why do I need a lawyer?

A few reasons:

  1. You may not know what there is to divide up – spouses will often lie to you about what there is and even more often, what things are really worth.
  2. If there is any imbalance in power in the relationship.
  3. To ensure when you begin negotiations at a fair percentage you must know your rights and what you discuss with your ex is the best outcome for you and your family.
  4. To ensure the agreement you have reached is ‘fair’.
  5. To properly document the agreement to ensure the agreement can be implemented by third parties such as banks and super funds.
  6. If you don’t document the agreement properly your ex may come back for more ever many years later.

Do we have to be married to do a property settlement?

No. If your de facto relationship has broken down, you may also need to divide your assets/do a property settlement.
Family Lawyer Sheree

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