Property Division & Property Settlement FAQs

How are Bank Accounts, Property and Assets Divided?

See the following diagram which shows the three methods in Australia to legally separate property.

Informal Agreement
An informal agreement between you both. An informal agreement is not legal binding on you both and provides no legal protection. In some cases, your ex-partner could come back later for a larger slice of the property. We always recommend getting legal advice from a qualified family law lawyer for your peace of mind and protection.

Binding Financial Agreement
A Binding Financial Agreement is a private agreement between you and your ex-partner that must meet the requirements of the Family Law Act 1975. Each party must have independent legal advice.​

Consent Orders
Consent Orders allow parties to get Court orders by agreement for the separation of property without having to actually go to Court. Consent orders must be fair and equitable in the circumstances. Our family law lawyers are experienced at obtaining consent orders successfully and ensuring that our client’s property rights are protected and that they receive their fair share of the property.

Going to Court
Court proceedings involve commencing family law proceedings and having a Court determine a fair and equitable division of property. The parties can agree to settle proceedings at any time by consent, approved by the Court.

What happens if one party doesn’t agree?

It is not uncommon for parties to have many disagreements at the outset of a property settlement. Our property settlement lawyers provide strategic negotiations to help bring about resolution of disagreements and help you move toward property settlement. If the parties do not agree, and Alternative Dispute Resolution avenues have been exhausted, then it is usually the right time to have one of our family law lawyers commence family law proceedings on your behalf.

Almost 95% of family law court cases are finalised without having to go through to a final trial. Even after a Court case has commenced there are interim hearings and stages long before the final trial. Our lawyers continue negotiations to bring about an agreed resolution to Court proceedings in which case the parties can jointly agree to end Court proceedings if the Court agrees.

A Court will consider many factors in making a determination and these are often unique to the facts of each relationship and the parties’ situation. The main factors the Court will consider are:

  • The contributions the parties brought into the relationship
  • The financial and non-financial contributions of the parties during the relationship
  • The financial and non-financial contributions made by the parties after the relationship ended
  • The future needs of each party

While family law can be complex, with straightforward legal advice we will help you separate your property and move forward with your life.

What is spousal maintenance?

Spousal maintenance is separate from child support, and can be a one-off payment or an ongoing regular payment made from one party to the other party for living expenses.

There is no automatic entitlement to spousal maintenance. Spousal maintenance must be obtained by an agreement between the parties or made by a Court order. A court will only make an order for spousal maintenance if the Court can be satisfied that:

  • The party to provide spousal maintenance has the income capacity to allow them to meet their reasonable living expenses; and
  • The party to receive spousal maintenance is in hardship or is in need of support.

What does ‘de facto relationship’ mean?

If you and your partner have a relationship and are living together on a genuine domestic basis, it is more than likely that you are in a de facto relationship. Usually, a de facto relationship commences when a couple in a relationship start living together, however, this is not always the case. A couple can be considered to be in a de facto relationship if they have separate residences.

If there is a dispute about whether a de facto relationship existed and the Court is asked to decide this point, the Court will consider various factors to determine the existence of a relationship, including:

  • If there is a common residence;
  • If a sexual relationship exists;
  • If there are joint finances;
  • If one party is financially supporting the other; and
  • If the couple present themselves publicly as a de facto couple.

How are Bank Accounts, Property and Assets Divided in Same Sex Relationship?

In 2009 amendments were made to the Family Law Act 1975 which gave same sex couples access to the family court system. There are two ways assets (i.e. bank accounts, personal property and real property) and liabilities (i.e. mortgages and car loans) can be divided. First, you and your ex-partner could reach a mutual agreement. Alternatively, if an agreement cannot be reached, the assets and liabilities of the relationship can be divided by a determination of the Court.

Importantly, a division of the assets and liabilities is not simply a matter of an equal split. As a starting point, the asset and liability position of each party at the start of the relationship should be identified. Our experienced lawyers will ensure that this is carried our correctly. It is then important to consider all of the financial and non-financial contributions which were made during the course of the relationship and the future needs of each party in order to determine what is an equitable division.

Non-financial contributions include:
Being the primary caregiver for any children of the relationship; and/or
Being the primary house-keeper during the relationship.

Non-financial contributions can carry just as much weight as financial contributions. They should therefore be taken into consideration when determining the manner in which the asset pool is to be divided. If possible, attempt to reach an amicable solution with your ex-partner. If a fair and amicable solution is reached, then we can put in place a legally binding agreement to legally divide the property. Our solicitors will prepare a document known as a Binding Financial Agreement or Consent Orders which legally formalises the agreement reached so that any breaches of the agreed terms can be enforced in a Court of law if need be.

We can assist with gay and lesbian relationship issues and help you get a fair and equitable division of the property.

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