Property Settlement

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. Our property settlement lawyers will work with you on this.

Once you reach an agreement, it is extremely important that you 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. 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 who will help 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 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 largest asset the parties have accumulated.

There are special 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 continued to live under the same roof during the 12-month period of separation prior to filing your divorce, 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 two years of separation. If you were married, 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 separately 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. 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 property settlement lawyers in Cairns, before you apply to court regarding property settlements or financial orders.