Property Settlement

A family law property settlement involves dividing assets, liabilities and superannuation between a separated couple, and/or making a clear determination about what of these items a person will be keeping.

There is no rule that means things will automatically be divided 50/50, or that you will have to give/receive all or some of an asset, liability or superannuation. Instead, we can help you to work through the family law framework to consider what may be considered a fair and reasonable division of property in your particular circumstances.

There is no minimum time you have to wait before dividing your assets in a property settlement, but we normally advise people to let the dust settle for a short while so that people are calmer and more able to consider things, but otherwise to deal with things as quickly as possible after separation.

There are, however, maximum timeframes if you were in a de facto relationship, or have officially divorced after being married. If you are outside the timeframes, you risk being considered ‘out of time’ and facing other issues – the worst of which being that you may not be able to get a property settlement at all. The timeframes are:

  • If you were in a de facto relationship, you have 2 years from the date of separation to finalise property settlement.
  • If you are officially divorced (i.e. have a Divorce Order, previously called a Decree Nisi), you have 1 year from the date the Divorce Order came into effect to finalise property settlement.

Similarly to family law children’s matters, we aim to assist you to reach a quick, amicable and cost-effective outcome whenever possible. We always try to work with your wants and needs, and also work very hard not to ‘de-rail’ the process.

No matter what the circumstances are, we will always ensure that we are in our client’s corner, and we are strong advocates for our clients.

Here at Samford Family Law, we will provide you with the advice relevant to you and your situation, along with the options and practical steps towards finalising your family law matter. We also aim to give well-rounded advice, often touching upon other areas of law whenever needed either by providing advice (if it’s within our expertise), or providing referrals within our trusted network to assist you to consider all aspects.

If you have separated, or are contemplating separation, talk with us to get some advice about your options, potential range of entitlement in a property settlement, and what the next steps may be. And, particularly if you are not yet separated, we can help you consider what resources or support may be available, and what you may be able to do if separation were to occur.

There are three ways to have a legally binding property settlement. All three options will allow you to receive an exemption from paying stamp duty if you are wanting to transfer a property or car into your own name as part of the property settlement. All three options will also allow you to split superannuation from or to your ex-spouse:

  • Consent Orders are usually the cheapest and quickest way to finalise property settlement. Consent Orders are made by a Registrar of the Federal Circuit and Family Court of Australia ‘on the papers’, meaning that you don’t have to go to court in person. Neither person needs to have a lawyer to make Consent Orders. Usually though, one person will have a lawyer to draft the Applicant and Minutes of Consent, which can be difficult for a non-lawyer to write correctly. Provided the Registrar is satisfied that the documents are correct and that the proposed division of property is just and equitable (i.e. fair) the Consent Orders should be approved by the court and can then be implemented.
  • A Financial Agreement is essentially a contract between you and your ex-spouse, where you agree to opt-out of the court’s jurisdiction for your property settlement. Some people also call it a Binding Financial Agreement or BFA – they’re all one and the same. The terms of property settlement do not need to be ‘fair’. In fact, this is one reason why lawyers will propose a Financial Agreement over Consent Orders – because the proposed settlement manifestly favours one person, and Consent Orders on the same terms would not likely be approved by the court. Because you are opting out of the court’s jurisdiction, both parties must receive independent, specific legal advice prior to signing the agreement, and each person’s lawyer must sign a certificate that to that effect. If you don’t have this, the agreement will not be considered valid and binding.
  • If you and your ex-spouse are not able to agree about a property settlement, you can make an Initiating Application in the Federal Circuit and Family Court of Australia stating the property orders that you are asking the court to make. You are essentially asking a judge to decide on your case, based on the law. This can be a lengthy and costly process, however the vast majority of applications started in Court settle before going to a final hearing. Usually, having to meet the Court’s imposed timeframe and process can provide enough motivation for people to reach agreement along the way. Such agreement can then be documented in Consent Orders.
"You were brilliant. You took the stress and hassle out of my property settlement"