If you have separated or divorced from your partner, you are probably concerned about what will happen to you financially.
You will need to make decisions about the finances, property, and other assets (e.g. superannuation, shares) that you and your former partner have. This will include contributions made during the relationship through earning capacity, non-financial contributions, and debts or liabilities you each have. This process is known as a ‘property settlement’ and is set out under the Family Law Act which outlines what needs to be considered when making the order.
If you and your former partner can agree on a settlement, we recommend that you speak to a family lawyer about the agreement before it’s finalised. Once an agreement is finalised, it can only be set aside in limited circumstances. There are only two ways in which a property settlement can be finalised;
Our experienced Cairns-based family lawyers will advise you on the best way to finalise your agreement.
If you cannot agree on the settlement, our family lawyers will negotiate with your former partner on your behalf or support you at the Family Law Courts to get a Property Settlement Order, should you not be able to reach an agreement.
There are time limits on property settlement. You can finalise it any time after you separate, but it must be done within 12 months from the date of your divorce (the date the Certificate of Divorce was issued), or within 2 years of the date you separate if you were in a de facto relationship.
Property settlement can be a difficult process, especially if you have limited resources. Contact us to find out how you can defer your legal fees until you reach settlement, or if you are eligible for a payment plan (conditions apply).
Make an appointment to speak confidentially with one of our family lawyers about getting a fair property settlement.
When you apply for a property settlement, you will need to disclose your financial circumstances (assets and liabilities).
The court will usually consider the following factors in deciding on the property settlement:
To reduce worry and be prepared, speak with one of our family lawyers today.
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Parties to a property settlement have an obligation to provide 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 an asset is identified as having been transferred, the family courts have a wide range of powers to reverse the transaction or "add back" the value of the asset that has been disposed of.
It is extremely important that once you reach an agreement, to formalise it in a way recognised by the courts under the Family Law Act. 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 and the court is able to make orders about the division of your assets, liabilities and superannuation upon an application being made by either spouse.
The best way to protect your interests is to obtain legal advice about any agreement reached and to formalise that agreement. 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 to be distributed following separation. The transfer of super between spouses, also known as a superannuation split, is often crucial to ensuring a financially secure future for both parties, particularly 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 largest asset that the parties have accumulated between them.
There are special processes that need to be followed when dividing the superannuation. This includes a requirement that the trustee of the superannuation fund approve any proposed order in relation to superannuation before that order is made. Our experienced family lawyers can answer all your questions on superannuation.
Separation occurs when one spouse has an intention to separate, and that intention is communicated to the other spouse. Often spouses will separate and continue living together for a period of time.
If you and your spouse have lived together under the same roof during the 12-month period of separation prior to filing your divorce, then additional evidence by way of an affidavit may need to be provided with your divorce application. Our family lawyers can assist you to understand the date of separation and to apply for a divorce.
If you were in a de facto relationship, you must resolve both your property settlement and any spousal maintenance matters within 2 years from the date you separate. If you were married, the time limit for dealing with these issues is 12 months from the date of your divorce becoming final. If you are unable to resolve these matters prior to the time limit expiring, then 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.
The termination of a marriage, more commonly referred to as a divorce, and the process of dividing or adjusting a couple’s property interests, are two completely separate issues. Often, people intermingle divorce and property settlements into one process, however they are viewed separately in the eyes of the Australian legal system and in 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. However, commonly, property settlement may include a ‘fair’ share of superannuation, real estate, bank deposits, stocks and shares, businesses and other assets. It will also evaluate other financial support such as child support and maintenance.
Please speak to one of our expert settlement lawyers, before you apply to court regarding property settlements or financial orders.
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