Property Settlement Lawyer
Mornington Peninsula

Who gets the house? What about the savings? Who gets the antique vase from Aunty Mildred? These are all the types of questions you’ll be discussing with your ex-partner during a separation or divorce. Are they fun? No. Are they essential? Yes!

Dividing up your assets is an important step and there are many resources available to help you do that without the court’s assistance. Being able to discuss the financial assets and agree together will ensure a quicker and cheaper outcome for all involved. It may also lead to a better ongoing relationship in the event of children and custody arrangements.

Financial Agreement

A financial agreement is similar to a contract as it stipulates how property is to be divided between the parties. The Family Law Act 1975 (Cth) permits parties to a married or de facto relationship to enter into a binding financial agreement. A financial agreement can be made before, during or after a relationship and are often referred to as prenuptial agreements.

If you chose to make a financial agreement, you need to make sure you understand the terms of the agreement. Before signing any agreement each party must receive independent legal and financial advice. If formal requirements have not been met the agreement will be invalid and the court may set it aside.

Consent Orders

If you and your ex-partner agree on a property settlement you can prepare a written agreement in the form of a consent order and then seek approval from the court. Once you sign the agreement you state that you agree to the terms provided in the document, similar to the way a contract works. Once the court approves the order it is given legal effect.

You may also apply for a consent order without having to attend court.


The legal stuff

A property settlement is an arrangement made between parties to divide assets, liabilities and financial resources when a couple separates. A property settlement can be made with or without the court’s assistance.

Property can include almost anything of value, such as:

  • Property owned jointly or independently;
  • Superannuation;
  • Business interests;
  • Trust interests;
  • Jewelry;
  • Cars;
  • Assets acquired through inheritance;
  • Money;
  • Animals.

A property settlement is not limited to property acquired during the relationship. Property owned prior to and after the separation can be included in a property settlement. Liabilities will also be divided between the parties, whether they are held jointly or individually, such as:

  • Debts;
  • Loans;
  • Tax; and
  • Stamp duty obligations.

Court Ordered Property Settlement

If the two parties cannot reach an agreement outside of court, they can apply to have a court make an order on their behalf. A court will only make an order if it is fair and reasonable to alter the parties’ property interests.

The court follows the following five step process to determine how property is to be split between the parties:

  1. Identify the existing legal and equitable interests of each party to the property;
  2. Determine whether it is equitable and just in the circumstances to make a property settlement order by reference to those established interests;
  3. Determine the direct and indirect, financial, and non-financial contributions (such as salary, care of children and homemaking) made by or on behalf of each of the parties as a percentage based entitlement;
  4. Consider whether a further amendment to the percentage based entitlement should be made taking into account the future needs of the parties (such as, care of children, health, financial resources, ability to earn); and
  5. Consider whether the result reached is a just and equitable result in all the circumstances.

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