Property and Financial Settlements

Our lives and finances are becoming more and more complicated. A property settlement may need to cover a wide range of property including:

The family home. Decisions will need to be made about who will keep the home or whether it will need to be sold.
Investment properties and shareholdings. Often there are taxation consequences that need to be considered as part of any property settlement.
Trust, company and partnership structures. If you are retaining the structure, care needs to be taken to properly remove your partner from ongoing involvement in the entity. If you are stepping out of the entity, we will make sure you are protected against any future liabilities of the entity.
Businesses and farming enterprises. Property settlements may need to ensure the ongoing viability of a business or farming enterprise to ensure ongoing income for the family.
Superannuation. Superannuation may be split between you and your partner. Or one of you may keep more of the superannuation and the other may keep more of other assets. Self Managed Superannuation Funds (SMSF) are becoming more common and need particular attention in family law settlements.

There are many factors to consider with property and financial settlements, including:

Contributions during the relationship (both financial and non-financial).
Future needs, including ongoing care of children or other people, earning capacity and other financial resources that may be available.

If you are thinking about a separation, or have already separated, contact us for advice about your rights and entitlements before agreeing to a financial settlement.

We can help you in your discussions with your partner and assist you to reach an agreement about a financial settlement. After meeting with us, you might wish to have direct discussions with your partner to try and reach an agreement, or you might prefer us to negotiate with your partner or their lawyer on your behalf. We will talk to you about the best way of achieving an agreement in your particular situation.

Once an agreement is reached we will prepare the documents needed to finalise the property settlement so that you are protected from further claims from your partner in the future. You can rely on us to implement the agreement including taking care of property transfers, and any changes to companies or trusts.

Our preferred approach is to resolve property and financial matters by agreement wherever possible. This minimises your stress and financial costs. Unfortunately, sometimes it is not possible to reach agreement about property and financial matters. This might be because the other person refuses to negotiate, takes an unreasonable position or threatens to destroy or dispose of assets. In those situations, Family Court proceedings may be necessary. We have the skills and experience to represent you in the Family Court and act decisively and assertively on your behalf.

Frequently Asked Questions

My ex and I agree on how we should divide our assets. Do we need to see a lawyer?

It is always better to agree on a property settlement than go to Court. However, before you make a final agreement or divide your property, we recommend you meet with our family lawyers for advice about whether the agreement is fair to you.

Our family lawyers can also assist you in formalising your agreement by obtaining Consent Orders through the Family Court. This will make your agreement legally binding and protect each of you from further property claims. You and your partner will not have to attend Court to have the Orders made.

My ex had an affair. Does the Family Court take this affair into account in a property settlement?

No, we have a no fault family law system in Australia. This means that the Family Court is not concerned with why the relationship ended when it makes decisions.

How is my inheritance treated in a property settlement?

Inheritances are usually treated by the Court as an extra contribution by the person who received the inheritance. Whether the other person will share in your inheritance will depend on a number of factors, including when the inheritance was received, how much the inheritance was, what other assets there are and what future needs you and the other person have. When our family lawyers meet with you they can advise you how the inheritance is likely to be treated in your particular situation.

Do I need to be divorced before I have a property settlement?

No, you can finalise your property settlement any time after you separate – you do not need to wait until you are divorced.

If you have not finalised your property settlement by the time of your divorce, you need to do so within 12 months of your divorce. This is because there is a time limit of 12 months to start Court proceedings after you are divorced. The Court can give permission to start Court proceedings after this 12 month period in limited circumstances, but you should not assume that permission will automatically be granted.

Is there such a thing as alimony in Australia?

Yes, but in Australia it is called "spousal maintenance" for married couples or "maintenance" for de facto couples.

What is spousal maintenance?

Spousal maintenance is an ongoing periodic or lump sum payment from one spouse to the other spouse for living expenses. You might have heard maintenance being referred to in American television shows as 'alimony'. It is separate from child support which is paid for children's expenses.

Unlike child support, there is no automatic entitlement to spousal maintenance. Spousal maintenance is paid only by agreement or by Court Order. To be successful in a claim for spousal maintenance, a spouse must be able to establish that:

given their current income and income earning capacity (excluding any income tested government benefits) they are unable to meet their reasonable living expenses and
given their spouse's income and income earning capacity, and taking into account their spouse's reasonable living expenses, their spouse can reasonably be expected to provide financial support to them.

Does spousal maintenance apply to de facto couples as well?

Yes, the Court can order maintenance to be paid from one partner to another when a de facto relationship breaks down provided that:

the de facto relationship has lasted 2 years or more or
there is a child of the de facto relationship or
one party made a significant contribution during the relationship and there would be injustice if the Court did not make an Order for property settlement or
the de facto relationship is or was registered under a law of a State or Territory.

The person seeking maintenance must also satisfy the Court that:

given their current income and income earning capacity (excluding any income tested government benefits) they are unable to meet their reasonable living expenses and
given their former de facto partner's income and income earning capacity, and taking into account their former de facto partner's reasonable living expenses, their former de facto partner can reasonably be expected to provide financial support to them.