When a couple separates, the question of who takes what must be decided. This is where property settlement comes in – it is an arrangement made between parties to divide their assets, liabilities, and financial resources.

The division of assets in divorce – or property settlement after separation for de facto couples – can be a complex issue governed both by Australian family law and the individual circumstances of each case. It is also one that needs to be settled following a time limit; this is generally one year for a divorce property settlement or two years for a de facto property settlement.

Therefore, it is important to get legal advice from family law property settlement lawyers as soon as possible following a separation, or even before a divorce is finalised.

In a property settlement agreement, property refers to all assets, liabilities, and financial and non-financial resources held by you and your former partner. This is not limited to property acquired during the relationship – property owned before and after the separation can be included in a settlement. This includes:

• Property held jointly, or independently
• Superannuation
• Business interests
• Trust interests
• Real estate
• Jewellery and furniture
• Vehicles
• Assets acquired through inheritance
• Money in the bank
• Passive and non-passive income
• Insurance policies

Liabilities will also be divided between the parties involved, whether they are held jointly or individually, such as:

• Mortgages
• Debts
• Bills
• Tax
• Certain specific expenses

However, this is not an exhaustive list and each case is decided on its own merits, which is why it is important to seek legal counsel from experienced family law property settlement lawyers to determine the division of assets in a divorce.

Yes, you can but you should record that arrangement in a legally binding way with the assistance of a lawyer. If the division of assets can be agreed upon, then our family law property settlement lawyers can formalise the terms of the settlement agreement under a binding financial agreement or consent order. This applies to both divorce cases and de facto separation cases.

Otherwise, our lawyers will be able to advise you on the next best course of action, such as commencing mediation or bringing the case to the family court.

A financial agreement is similar to a contract as it sets down how property is to be divided between the parties. The Family Law Act permits parties to a married or de facto relationship to enter into a binding financial agreement.

A financial agreement can be made before, during or after a relationship and is often referred to as a prenuptial agreement.

A consent order is a written agreement that is approved by the court stating that both parties agree on a property settlement. Once you and your ex-partner sign the agreement and it is approved by the court, the order is given legal effect.

You may also apply for a consent order without having to attend court with the help of your family law property settlement lawyer.

You can apply to have a court make an order on your behalf. However, the court will only make an order if it is fair and reasonable to alter the parties’ property interests. To determine how a property is to be split between parties, the court follows a four-step process:

• Valuation of assets
• Considering the contributions of each party
• Considering the future needs of the parties
• Weighing up the fairness of the practical outcome

These general principles can be broken down into various determining factors such as the length of the marriage, any pre-nuptial agreements, future income potential, the role of caring for children and dependents, and so on.

Under Australian law, the division of assets in divorce is not automatically split 50/50 as in some other countries. How property is divided depends on the individual circumstances of a particular case. That said, you and your partner’s contributions may be seen as equal, especially if you have had a long relationship.

If you are still unsure about the family law property settlement process and are worried about being disadvantaged, please do not hesitate to reach out to our family law property settlement experts and we will guide you through the process according to your situation.