Property Settlement in difficult financial times

4 Feb 2013 - Divorce Property 

Property Settlement . We  have formulated some guidelines for a property settlement. The  advice below is a general but a handy guide to first steps in a Divorce property settlement. If you need other questions answered, or need to speak to a member of our top Family Law team about your particular situation, please phone us for a free 10 minute chat, or email us on for a confidential and free chat.

As if people thinking about Divorce or separation in Queensland didn’t have enough worries with the floods and the cleanup! Now we have dropping house prices and downturns in business and share prices as well. This obviously impacts on peoples’ ability to get property settlement sorted and can result in more Court cases in the Family Court. Today I thought I’d talk about some strategies to help you through and also comment on the way this has been played out in Court cases and settlement mediations throughout the past year in my firm, Journey Family Lawyers, and also what I have heard from other Family Lawyers.

In property settlement, the first step is to calculate the assets. This is easily achieved by valuing the assets or selling them! Just be careful that you never rely on old valuations where property prices are dropping, you should make sure your valuation is no more than about three months old.

If you have Superannuation, then, like shares, the value may have dropped to a disappointingly low level. This is not so easy to swallow, and the best thing you can do is accept the losses and move on. It is what it is.

Values of assets are an issue for the final stage of property settlement proceedings under section 79(4) of the Family Law Act. But what happens during the initial separation? In our article, “Separation advice: Before you go“, we talk about strategies for those early, difficult days. It helps if you think about separation in two stages, the interim, immediate stage and the long term plans and outcome that you want to achieve.

So, close your eyes and take a deep breath. I want you to visualise how your life will be after you have sorted this mess of separation out. Some people see themselves in a rented unit or house, others see themselves in their own home, bought with the proceeds of sale of the joint property, and still others plan to buy their partner out of the current joint home.

Whichever plan you have, you can see that it won’t be achieved instantly, no matter how amicable your settlement will be and however friendly your separation is. In the current housing market, you can expect to have your house for sale for over 100 days before it may sell. You may need to consider reducing prices. Don’t worry too much, because you will be presumably buying your new property in the same low market.

But, you need a short-term plan as well. One that can keep you comfortable and secure until the finances are untangled. This is the tricky one. So, a couple of FAQ’s.

  1. The person who stays in the family home usually has to pay the outgoings, such as mortgage rates and insurance etc. I say usually, because there are exceptions, such sometimes where the children are in the home as well, or where the bank is chasing the joint mortgagors. The idea of the person who stays being responsible for the payments is one that the Family Law Cases has generally endorsed on the basis that the other party presumably has to get their own accommodation and will be paying for that.
  2. Leaving the home does not mean you have somehow abandoned your right to have it considered in ten property settlement.
  3. If you have a car registered in the name of one person, but it is agreed that the other person can have it in the short or long term, that is fine, but if the non registered user of the car does not pay the registration, or insurance, then it is the registered owner who may be liable.
  4. Medical insurance is usually in the Family Rate at the time of separation. Be careful about relying on the other party to make the premium payments. I often advise my clients to check that the payments have been made each month. Ultimately you need to get separate health insurance but many people find it easier to keep it joint in the short term, especially when everything is in chaos in the early weeks of separation. This is particularly useful and important if you have kids.
  5. Furniture, whilst important is not the be all and end all. If taking a particular piece of furniture is going to damage your relationship further than it already is damaged, you might like to reconsider. If you take the ” removal truck” option, where you take everything and just leave very little, then you should not be surprised if your ex will not negotiate with you on the rest of property settlement. Try to be very fair. It may pay off when it counts, say in property settlement or in kids matters.
  6. Take all of your papers, and copy all of the joint ones, or take them and copy them at a later date. You can always give them back. But you may spend a lot of money with lawyers finding out information that was already available to you in your cabinet before you left.
  7. Finally, take your photos, trophies, sewing, tapestry, music or rock collection, or whatever it is that is precious to you and irreplaceable. If it should be shared, you can give it back later, or have it valued later, but if it is one of a kind, and valuable mainly only to you, take it now, when you go. Otherwise I am afraid it may well disappear (I have seen it happen often), or be regarded as unimportant by the Judge in the final property settlement. These are the things that you will regret losing and for which money is not a substitute.

So get yourself settled in a way that you can afford, with the things such as insurances and your personal items safely with you. Don’t upset your partner unnecessarily. Make sure that between you both all the bills are still being paid. Be aware that this is just a holding pattern, and don’t let the emotion of the break-up make you foolish about these things.

Think about what you want to achieve in the future with your settlement. Reality check this with friends and then give your lawyer the goal posts. Hopefully a friendly civilised property settlement will be yours within the year!

Our firm knows the pressure that unresolved property issues brings to your daily lives and we will do everything we can to get a speedy resolution through either mediation, negotiation or if necessary, strong and decisive representation in Court.

I hope this helps, email me or send a question to Journey Family Lawyers at Someone will get back to you usually within a couple of business hours for free. Or phone us on one of the below listed numbers for a free 10 minute consultation

Kind Regards,

The Journey Team


63 responses to “Property Settlement in difficult financial times”

  1. Marissa says:

    Hi, I have recently separate and we have lodged our Consent Orders with the Court through their e-filing option. My ex has asked that I sign the transfer title paperwork before the Consent orders are approved. Should I do this, or wait for the Court to approve the Consent Orders?? thanks, Marissa.

    • Journey Family Lawyers says:

      Dear Marissa,

      Wait for the Order!

      The Order should stipulate that any transfer and refinancing of a property takes place within 30 days of the date of the Order. That’s plenty of time. Preparing documents in advance might be organised but there is absolutely no need for documents to be signed before the Court rules on the proposed Order. The Court can grant the Order, reject the Order or sometimes they want changes to the Order itself.

  2. Jeffery says:

    How come the man always gets screwed. Left with nothing, no house no money no job no left. You work hard all your married life, wife does nothing. I come home have to do cooking washing and clean house. Studies for eight years never getting a job. Kids suffer, yet you are left with nothing. HELP

    • Journey Family Lawyers says:

      Hi Jeffrey,

      Are you in the process of property settlement? If so you should get some legal advice about property settlement before signing anything. The court uses a process for determining property settlement entitlements and it is very rare than one party gets 100% of the property pool.

  3. No more mrs Narc says:

    Hi I am going through a messy divorce, we have 3 children who are living with ex narc ATM as he moved into our brand new house. ( it’s taken 6 years to build our dream home, no one was suppose to move in until we decided at settlement but he does what he wants)
    We also own a business and a factory together.
    He wants to buy me out of the house.
    I am on the titles as 80% owner and him as 20%.
    Does this higher percentage give me any benefits.
    Also the children will be shared 50/50 when all is settled

    • Journey Family Lawyers says:

      In property settlement the court would normally just put all of the assets, liabilities and superannuation in one pool to be divided up, unless there were some special circumstances relating to that item of property that justifies it being treated differently. It depends why the property was registered as an 80% and 20% ownership, for example if it was simply for tax minimisation it is unlikely to make any difference at all however if it reflected a contribution then it may be relevant to the court in it’s assessment of contributions.

  4. Annabelle says:

    Hi, my husband & l are separated. We are currently in the process of going to court. My husband is stating there is no money & that the Bank has a hold over our properties as he refinanced and stating there is little equity. He is reluctant to go to court or pay me anything. He has a Job that earns well in excess of $150,000.00 PA plus another business. He is wanting us to resolve this before court stating we will save money, but in true fact he is avoiding court & trying to rail road me. What to do?

    • Journey Family Lawyers says:

      Hi Annabelle,

      Firstly you need to know whether the offer he is making is reasonable or not. You should see a lawyer to find out how much you would be entitled to in property settlement and if necessary you can have your lawyer ask for disclosure to find out what the real state of your finances are if you are unsure about this. You have to be clear moving forward what’s in the pool and how much you are entitled to. Without that information there is no way to tell whether your ex is trying to ‘rail roading’ you or not.

      You should never go to court unless you absolutely have to in our view. Sometimes you will have to and there’s no way around it, however you should try and avoid it if you can and negotiate an outcome.

  5. Jamie says:

    Hi, my wife and I are separated and we are trying to get all the property settlement and all done but because it’s a recent loan and there’s not enough equity in the house the bank won’t refinance on my name only. We agree that I should keep the house since there’s no equity but what can we do to have her name out of the property if we can’t refinance? Will a consent order be approved if we just state that her name should be removed from the property or can that even be done ?

    • Client says:

      Hi Jamie,
      When ordering property settlement the court wants to separate you financially so it’s unlikely an order would be approved for a debt to remain in joint names. If a way can’t be found to remortgage then sadly sometimes the house may have to be sold, even if it ends in loss.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.