Property Settlement

People in a property settlement must provide a full and frank disclosure of all assets, liabilities and superannuation. Through this process, any asset that has been transferred into someone else’s name will be identified.

If a court determines that someone transferred an asset, they can reverse the transfer. They may also include the value of the asset in the marital assets. Our property settlement lawyers will work with you on this.

Once you reach an agreement, it’s important to document it in a format recognised by the Courts. This will ensure that the courts can approve the agreement. The only way a court will recognise a property settlement is if it is recorded in consent orders or a binding financial agreement.

If you have not formalised your agreement in one of these two ways, then as far as the courts are concerned, you have not actually completed a property settlement. The court is therefore able to make orders about the division of your assets, liabilities and superannuation upon an application being made by either party.

The best way to protect your interests is to obtain legal advice from a property settlement lawyer about any agreement reached. They will help you formalise that agreement in a way accepted by the courts. There are additional benefits in formalising your agreement, for example, not having to pay any stamp duty on the transfer of property between spouses.

Superannuation is included in the pool of property that is available for distribution following separation. The transfer of super between spouses, also known as a superannuation split, is often crucial to ensuring a fair and financially secure future for both parties. This is particularly important if one spouse has been out of the workforce during the relationship and hasn’t had an earning capacity. In many property settlements, superannuation will be the most significant asset the parties have accumulated.

There are specific processes that need to be followed when dividing the superannuation. This includes a requirement that the superannuation fund’s trustee approves any proposed order in relation to superannuation before that order is made.

Our experienced property settlement lawyers can answer all your superannuation questions.

Separation occurs when one spouse intends to separate, and that intention is communicated to the other spouse. Often spouses will separate and continue living together for a period of time. This is so fair arrangements that suit both parties can be organised.

If you and your spouse lived together for 12 months before filing for divorce, you may need to provide additional evidence. This evidence could include an affidavit, which is a written statement made under oath. You would need to submit this affidavit along with your divorce application. Our family lawyers can assist you to understand the date of separation and to apply for a divorce.

For de facto relationships, you must resolve your property settlement and any spousal maintenance matters within two years of separation. For marriages, the time limit for dealing with these issues is 12 months from the date of your divorce.

If you are unable to resolve these matters prior to the time limit expiring, you will need to file an application with the court to preserve your rights. There are only limited circumstances where a court will allow an application outside these time limits. Speak to one of our property settlement lawyers as soon as possible to find out if an application can be made.

The termination of a marriage, referred to as a divorce, and dividing a couple’s property interests, are two separate issues. Often, people combine divorce and property settlements into one process. However, they are viewed as two separate matters in the eyes of the Australian legal system and the Family Law Act.

The divorce legally dissolves or ends the marriage, whereas a property settlement is the process of dividing assets and debts between you and your partner.

Each property settlement is different and depends on the individual circumstances of your family. Usually, property settlement involves dividing superannuation, real estate, bank deposits, stocks and shares, businesses and other assets fairly between both parties. It will also evaluate other financial support such as child support and maintenance.

Please speak to one of our expert property settlement lawyers in Cairns, before you apply to court regarding property settlements or financial orders.