When people separate (whether from a marriage or a de facto relationship), they will usually need to sort out how to divide their assets and their liabilities.
Property settlement in Australia is the legal process of dividing assets, superannuation, and debts following the breakdown of a marriage or de facto relationship. It is a separate process from divorce, and discussions regarding property settlement can begin straight away following a separation.
Where appropriate and safe to do so, our approach is to seek a negotiated property settlement outcome to avoid the costs and stress of court proceedings. It is common for child support and spousal maintenance issues to be included as part of any overall financial settlement.
Under the Family Law Act 1975, property means all assets, liabilities, and financial resources that you and your former partner own or have an interest in, regardless of whether these are held jointly or solely in your respective names (or, in some cases, held via interests in corporate entities or trusts). Under Australian Law, the Court will consider all existing property, regardless of whether it is located in Australia or overseas, and regardless of whether it is acquired before the relationship, during the relationship, or after separation.
The property available for division between you and your former partner is commonly referred to as the “asset pool”.
Under the law in Australia, there is no 50/50 starting point. The Court follows a four-step process:
There is no one size fits all approach, and what is a just and equitable outcome for you will depend on the unique factors and circumstances of your case. Getting advice from an Accredited Specialist early means you’ll understand your real range of outcomes, not a rough guess.
Usually, no. Most property settlements are resolved by agreement and formalised through either:
Both options are legally binding and enforceable, but have some key differences. We’ll explain the differences and discuss the right option to suit your situation.
12 months from the date of divorce to apply for property orders
24 months from the date of separation
Mark Borda, Accredited Specialist in Family Law
common questions
The family home forms part of the asset pool available for division between you and your former partner. As part of a property settlement, the home may be sold, transferred to one party, or, in rarer cases, even retained jointly for a period of time.
The outcome depends on what other assets exist, the contributions and circumstances of the parties, and what is just and equitable at the end of the day.
You may be able to remain in the family home pending an agreement being reached or the Court determining your case. This will depend on a number of factors, including whether there are any children living in the home, the capacity of each of you to meet mortgage repayments and other household expenses, and what orders you each seek.
If you and your partner are unable to reach agreement directly or through negotiations with lawyers, then your matter may proceed to mediation or ultimately court, where a Judge will decide how assets and liabilities are divided. In Australia, the Court that hears property settlement cases (and other cases concerning family law) is the Federal Circuit and Family Court of Australia.
We are also experienced in Arbitration, which is a private court-like process where parties engage an independent Arbitrator (usually a senior family lawyer) who determines their financial dispute and delivers a binding decision, known as an arbitral award, which can be registered with the Court and enforced as though it were a Court Order.
The timeframe varies depending on complexity, but property settlement in Australia can take anywhere from a few weeks (if agreement is reached) to several years if litigation becomes necessary.
A common misconception is that property is valued at the date of separation. It’s important to understand that if your matter proceeds to a court hearing, the court must identify and determine the value of the asset pool as at the date of the hearing. This means that the value of the asset pool can fluctuate significantly from the time of separation to the finalisation of your property settlement.
We provide strategic and commercial advice to take these considerations into account in negotiating your property settlement.
Generally speaking, under the law in Australia, all property, whether it is located in Australia or overseas, or acquired before, during, or after the relationship is included in the asset pool available for division in a property settlement.
In some cases, the Court may exclude a particular asset from the asset pool depending on how or when it was acquired (for example, an inheritance received after the breakdown of the relationship), however this is not the norm.
The only effective way to protect wealth and assets from a potential property settlement is to proactively address this by way of a Binding Financial Agreement, entered into at the commencement of, during, or even after a relationship or marriage. These agreements are technical and require both parties to seek independent legal advice.
Without a properly prepared Binding Financial Agreement, a former partner may be able to bring a property settlement claim, and assets which you had not intended to form part of the asset pool may be exposed.
We have more information regarding Binding Financial Agreements here.
Not necessarily, but it is highly recommended. There is no requirement to seek legal advice, and if you and your former partner are able to reach an agreement regarding a property settlement, then you may be able complete the paperwork yourselves.
However, engaging a specialist family lawyer can help you understand how the law applies to your individual situation and provide guidance through the process. The outcome of a property settlement can significantly impact your financial stability and future, and receiving the right advice can help ensure your property settlement is fair, legally binding, and properly formalised through consent orders or a binding financial agreement.
Having a lawyer is also important to address any imbalances of power in your relationship that might otherwise lead to an unfair outcome.
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Mark Borda, Accredited Specialist, works with you directly
Court is sometimes necessary, but rarely the best first step
A free 20-minute consultation is enough to get a realistic sense of your entitlement and the path forward.
