10 Key Facts About Property Settlement

What is Property Settlement?

When a marriage or de-facto relationship is over, the financial ties between the parties need to be finalised.  For instance, if there is a jointly-owned house, it needs to be decided what happens to the house.  It may be that the house is sold, or one party may be able to take it over and, if necessary, “buy” the other party’s interest.

The Family Law Act 1975 sets out the process and law regulating Property Settlement.

Often people hear stories from friends, relations or work colleagues about their experiences; because the Family Law Act deals with people on an individual basis, each matter must be looked at on a “case-by-case” basis. Every relationship and situation is different; so to know where you stand, you must obtain advice about your situation, not someone else’s experiences.

Here is a comprehensive booklet our Accredited Family Law Specialist ( who has over 33 years experience in Family Law) has written about coping with property-settlement-managing-co-parenting/

Do separating couples need to have Property Settlement?

Yes.  One of the most important reasons for having a property settlement is to finalise your financial ties with your ex-partner.

If you do not finalise your financial relationship, either party may come back at the other down the track and make a claim for Property Settlement. If this happens, the Court doesn’t look at the property at the date of separation, they look at it at the date of proceedings, and, if it makes it all the way through the Court process, at the date of Trial.  Therefore, there are situations where property or debt acquired after separation by one party is brought into the property pool.

Examples of this are real estate or assets acquired after separation (even with another person), increases in superannuation and savings, and increases in the former matrimonial home.

Extreme cases can be when one party inherits an amount of money or has a lottery win after separation, but prior to a formal property settlement taking place. In this situation, the inheritance or lottery win can be included in the property asset pool for the Court to consider.

There are also practical issues which need to be addressed after separation; such as, who is responsible for the mortgage payments, personal loan or credit card payments?

Before agreeing to any proposed settlement, it is most important that you get legal advice as to your particular financial entitlement (and obligations) so that when you are dealing with your former-partner, you know where you stand, legally.

How do I start the Property Settlement Process?

Whether you reach amicable agreement or not in relation to your property settlement, the best way to finalise the financial relationship is to commence the property settlement process as soon after separation as is practicable. Most matters, even when there is a dispute, do not go to a Trial before a Judge.

At Journey Family Lawyers, we normally start the process by advising you of your entitlements.  With your instructions, we will then draft a letter to send to the other party to try to reach agreement without the necessity of going to Court.

Alternatively, Mediation between the parties is an option we recommend if it is likely that an agreement can be reached.  However, in some cases where  there is little likelihood of Mediation succeeding, commencing Court proceedings may be appropriate course of action to take because the Court process induces parties to address the issues and Mediation can follow.

Often, there are disputes about what property is in the property pool, what values are attributable to those assets and how they should be managed during the process (i.e. who should pay the mortgage, or who should live in the house before a final Property Settlement has taken place). These types of issues vary on a case -by-case basis but must also be dealt with to allow the Property Settlement process to proceed.

What is Property? 

Property includes all the assets under the ownership OR control of either or both parties to the relationship.

This includes real estate, interests in businesses and companies, superannuation, shares, money in bank accounts, vehicles, boats, antiques, jewelry or artworks and so on. Also, interests or entitlements in trusts may also form part of the property pool.

Also there are some financial resources that one party may have access to that a Court can also take into account.  Examples of financial resources can be interests in deceased estates and interests in family trusts.

What are the time constraints for Property Settlement?

Either party to a Marriage or a de-facto relationship (as defined by the Family Law Act), can bring an Application for Property Settlement at any time after separation.

Generally it is best to deal with Property Settlement as soon as separation occurs. At the least, separating parties ought to obtain independent legal advice as to their rights and obligations for property settlement so that they do not agree to accept less than their entitlement.

With some exceptions, separating parties must commence proceedings for a Property Settlement (bring a Court Application) within twelve months of their Divorce, for a married couple and for a de-facto couple, within two years of their separation. If you do not commence property proceedings within these time limits, you may lose your rights.

If a Property Settlement is not reached prior to these time limits, the other party may still be able to bring an Application for Property Settlement “out of time”.  So, if you have not had Property Settlement, you may still be at risk outside these time limits.

 

How do I formalise our Property Settlement?

Often through negotiations, agreement can be reached and then the best way to finalise property is through Consent Orders. Consent Orders are Orders both parties have agreed to and which a Court or a Court Registrar then scrutinises and if they are satisfied that the proposed settlement is just and equitable, they will make the Orders

There is also an option to make a written agreement called a Binding Financial Agreement. There are many cases where these types of agreements have been overturned by the courts. It is important that they be prepared carefully and signed off properly. Quick or cheap Financial Agreements are not the answer.

How is Property Settlement calculated?

The Family Law Act and the Courts have established a four-step process to work out the respective parties’ rights and entitlements in a Property Settlement.

Broadly speaking, the process considers what is in the property pool, including all assets and liabilities; it then looks at initial contributions, contributions during the relationship, both financial and non-financial and then it looks at post-separation factors. As there are many variables, each case must be looked at on an individual basis to determine the respective entitlements.

Before agreeing to anything, we strongly recommend you see a Lawyer to go through this process to work out your position.

Do I have to go to Court for Property Settlement?

Most cases do not go to Court or to Trial. This is because the process is aimed at negotiating and finalising the property settlement without the necessity of a Court action. There is a process that encourages settlement. The result is that, even when Court proceedings are commenced, very few cases end up in a final Trial.

What happens if one party does not want to have Property Settlement?

It is not uncommon that one party wants to finalise the Property Settlement and the other party does not. At Journey Family Lawyers, we firstly write to the other party or their Lawyers suggesting a process to mediate/negotiate the Property Settlement.

If the other party refuses to mediate or negotiate or, does not do so in a genuine manner, the next step is to bring an Application for Property Settlement. This means that both parties go before the Court. The Court makes directions to clarify the issues; it generally also Orders some form of Mediation. Often this process results in an agreed settlement (and Consent Orders).

This system means that, even if a party does not want to cooperate, the Court system deals with the Property Settlement, regardless.

 

What should I do?

In the first instance, you need to know where you stand in relation to your entitlements and obligations. If you do not do this you will not know what to expect and you may agree to something that is not “fair”.

Also, if you do not know what your entitlement is, you cannot negotiate effectively with the other party.

Therefore we recommend your first step is to see a Lawyer to ascertain your individual situation.

At Journey Family Lawyers, at our initial consultation, we try to work out a client’s entitlement and a suggested course of action to settle the matter as soon as practicable.

Sometimes after ascertaining your entitlement, you may choose to discuss it with your former partner. If you come to an agreement, we recommend you use a Lawyer to formalise that agreement.

Other times, it might be a matter of engaging Lawyers to deal with the issues.

Each case is usually slightly different and it depends on the individual situation.

If you are in doubt with any of these matters, always consult a Lawyer.

Alternatively, if you are wanting further information, click here to go back to our Property section where we have lots of helpful articles.

595 Comments

595 responses to “10 Key Facts About Property Settlement”

  1. Diana says:

    Hi,

    I have recently separated from my husband on 10th January 2020 due to his continuous substance abuse . I have since had to take out a final AVO against him due to his threatening and aggressive behaviour as we have a 8.5 month old baby whom he has threatened to kill. I am currently on maternity leave and do not return back to work until a couple of months . We have a unit which we brought together in December 2017 under joint names . I have since moved out of the unit and he has advised me that he will keep living there and not pay a cent until we default on our mortgage repayments and the bank repossess the unit. When we separated i transferred all the money in the joint savings account so i could make repayments on the mortgage and pay for other bills and utility rates as he did not care at all. I have since kept a record of all the payments i have made . The savings which he had to cover payments is now running out . The utility bills are under my name and i am thinking of getting them disconnected but worried that he may damage the property as revenge to get back at me . What can i do if he does damage the property, is he allowed to do so because the property is in joint names ? I want to put the unit on the market ASAP but he does not want to sell and will not cooperate and he has turned unit upside down . We also have a joint credit card which i have had to call the bank to block as with his substance abuse he has racked up over $2500 worth of debt which he has left behind for me to pay off . Is there anything i can do ? I am happy to pay off the credit for the expenses which i have incurred but i don’t think it is fair that i have to pay his share as well ? We also have a joint personal loan as well which i called the bank up about as well and they put me under financial hardship until end of June 2020 and then i’ll need to make the normal monthly repayments. What happens with joint debt , i don’t think that its fair i should take on all the financial repayments.

    • Journey Family Lawyers says:

      Hi Diana,
      If you can’t reach an agreement with your ex husband then you will need to apply to the Court for Property Orders. You may apply for Interim Orders in relation to the payment of the mortgage and for Final Orders in relation to the division of the property pool, for example, the sale of the unit and payments of debts.
      A Court Order is enforceable and can specify things such as who is to pay for the mortgage and what happens if the mortgage is not paid, for example, the sale of the property.
      Without a Court Order, in the banks eyes you are both equally 100% liable for the mortgage and there is a risk to you if your ex husband does not pay the mortgage.
      Kind Regards,
      Megan Patten

  2. Oliver says:

    Hi Lynette
    I have met my current partner in 1997 and I have been looking after her (severe health issues and on the doll) ever since. In 2007 we become a couple and she went of the doll but has never worked or contributed anything to common assets ever.
    She has finished her chemo last year December (2018) and is in remission which is great but she still has lots of pain. She is 65 years old (1 year and 9 months to go to retirement) I am 52 and a professional on about $150K. I have finically supported her and cared for her 100 %. We have 2 houses that I am paying off and we live in one of them. We decided that we should separate.
    I offered her half of assets combined which will equate to about $350k … supper, cash, shares, selling the 2nd house she gets 90% so I can keep shares of equal value to be able to buy a flat and she can stay in current low mortgage house with only paying the interest owed of property. (Envisioned amicable agreement)
    She thinks that she is entitled to maintenance on top of getting all that and me having to pay the mortgage of the house she is living in. She will be entitled to Disability pension due to spinal injury and chemo side effects. She has been ill most of our relationship and I have been very active around household duties .. 80/20.
    Will I be punished by law for looking after and providing for my sick partner for the last 20 years? I am happy to give her 50% of everything I have worked for but her grownup Daughter wants to “maximise” her entitlements.
    Thanks
    Peter

    • Journey Family Lawyers says:

      Hi Peter,
      That is a hard question without knowing the values of things and the assets each of you had at cohabitation, and now. . I think your envisaged split sounds reasonable if you had more assets before you got together. Anything she gets over the contribution percentage is attributable to her maintenance. That may mean there would be a component for spousal maintenance already factored into your 50/50 split.

      The test for periodic spousal maintenance ( such as her daughter is suggesting by paying the mortgage) is whether or not she can support herself without access to social security. It seems she may not be able to. Then the court looks at your capacity to pay which you may well have. Remember though, that she will have a house in your proposal and the court will take into account this and expect her to maximize her income in some way, such as rent out a room or sell and move to a more modest house.
      Let me know if I can be of more help. I think you should give a lawyer a call to discuss and get a better idea of where this is all going. It sounds like your partner’s daughter has already talked to someone.Regards, Lynette

  3. Harveen says:

    Hello,
    Me and my husband moved to the new built last year in Nov 2018. His name is in the papers.
    He was very aggressive by nature and me and my children were facing violence. In March 2019, I came to know that he was taking drugs. As he was very violent and harming us physically as well so I have to call police. So officially we got intervention order in May 2019.
    At the moment me and my children are living in that property and I am paying the mortgage and council bills. Someone told me you have to sell the house after your divorce, so I started preparing my children on which they both are very upset don’t want this to happen. In November 2019, he breached the order and caught with drugs and since that time he is in prison.
    Can I claim the house as I am managing all the expenses? I am not receiving any support from him. I am also managing my children’s expenses by myself or Centrelink payments. I am working 6 days a week just to manage all the expenses.
    I don’t want to sell the property and not even my children.
    Can you please help me in this matter that what I have to do?

    • Journey Family Lawyers says:

      Hello Harveen,
      What you have been told is not quite true. You don’t always have to sell the house. To help you more, though, I’d need to have a chat to you and you can tell me what the value of your assets are and how long you were a couple. It sounds to me that you are making much greater contributions to the house that he has, although it would depend what the deposit was and where it come from.
      In a final property settlement, the house would be kept by one or other of you or sold.
      Depending on your circumstances maybe the house could be transferred to you and you take over and refinance the mortgage.
      There is no need to rush into a divorce, though. If you do get a divorce or he files for a divorce, then you have a time limit of 12 months from the divorce to bring an application for property settlement. if you don’t go to Court for a property settlement before the 12 months after the divorce, then you have to get special leave of the Court which is hard to get. You may then lose your chance to get a share of the house because it is in his sole name. It will be your responsibility to make sure that you take action before a date twelve months after the divorce.
      If you live locally you may like to have a telephone call or a one hour visit for $198.00 including GST.
      Regards,
      Lyn

  4. Hayleigh says:

    My ex and I split 4 years ago. I was a stay at home mother of two small kids. I moved in with my parents. My parents lent us 66K as a down payment when we purchased the home. We planned on waiting for the house to come up in value before we sold it. He paid the mortgage because I was in no position to do so. I now rent and cover those expenses. He says that I don’t get anything from the house because I didn’t pay for it. Its so unfair as I was caring for our kids. He now wants me to sign the house over to him when he refinances it. I was relying on a reasonable pay out for a down payment. I think it will be a few more years before he is in a position to refinance. Can you actually make sure I get nothing from the house at all?

    • Journey Family Lawyers says:

      HI Hayleigh,
      You will be entitled to something from the house and he is quite wrong in his understanding of the law.
      The initial loan from your parents was a great contribution on your part, even if it is being paid back to them, and, of course, looking after the kids is a contribution. Not all contributions are financial. Non financial ones are important too. From what you have told me, your contributions have been greater than his. He gets no credit for paying the mortgage. The law says that he has to pay it if he is living in the house. he doesnt get to say hes made a contribution when he pays the mortgage just like you cannot claim a contribution by paying rent where you are.
      You don’t have to wait until he refinances to get your share. You could agree to sell the house so you can get your entitlement now. Otherwise property prices might go up, and you are paying dead rent. He is not entitled to sit there in the house waiting until he can refinance.

      If he cannot refinance then that’s his problem. I would expect that you would get at least half and probably more than half of any equity in the house. He could only afford to keep the house if he can also afford to pay you half or more of the equity of the house. If you come and see us or another reputable Family Law firm, you can give the full information and get a true idea of what you can expect. It is probably not going to be worth your while waiting 4 years for nothing if he cannot or will not pay you your full share. Of course, the house may not be the only asset that has to be divided between you. Superannuation is often another big asset. You need to think about your future now. we offer an hour for $198 where we get all your info and make a case plan for you. If you have been defacto or have been divorced over 1 year, then there are time limits ti discuss. You should get advice as soon as possible.
      Regards Lyn

  5. Debra says:

    After 22years of marriage and a 27 years relationship we separated 4years ago and have been divorced for two and half years now. I since found out he was asked to leave his job of thirty years and was offered a large payout to leave quietly from the company forcing him into early retirement.On separation we split assets equally. I have now been informed he held off getting this payout until six months after our divorce and I’ve been told this is why he asked me to divorce him after one year of separation. He doesn’t know I know about this payout and know one told me that we should of done a form 11 at the time either. What should or can I do?

    • Journey Family Lawyers says:

      Hi Debra,
      Have you had a property settlement in writing and sealed by the court? If you have not, then you may be able to apply to the Court for property settlement out of time. The assets are divided as they exist on the date of trial or settlement, and not at the date of separation. Did you get any Superannuation in the split?
      If you have had property settlement already by consent Order or in Court, then you would have to apply to set aside the original Court Orders under Section 79A of the Family Law Act. This is harder to do.
      Would you like to give me a complementary call and you could give me a bit more information, so I can advise you a bit better? It is definitely worth exploring, particularly if said things like ” don’t get the lawyers involved” and “let’s do this between ourselves.” They always trigger alarm bells for me.
      PS I suspect because you don’t have a form 11, that the agreement was just between you both and never given to the Court. This makes it a bit easier, because you just apply for property settlement out of time and treat the dividing of assets you did years ago as “interim “property settlement only.
      Regards Lyn

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