Property settlements after separation
A property settlement is the division of assets and liabilities of the relationship. A Court can make orders for property settlement if it is just and equitable to do so. There is no rule that property must be divided equally, and an appropriate division will depend upon the specific circumstances.
The first step in determining a property settlement is to identify the current assets and liabilities of the parties. This includes real property, shares, bank accounts, motor vehicles, credit cards, loans, and superannuation.
The Court will also assess the respective contributions of the parties, including financial and non-financial contributions made at the beginning, during and even after the relationship has ended.
The future needs and financial resources of the parties are also considered in determining the property division. The Court will consider the parties’ respective ages, health, incomes and care of dependents when assessing their earning capacities. Another relevant factor is whether one or both parties are likely to receive an inheritance in the near future.
Finally, the Court will consider whether the outcome is just and equitable in all the circumstances. Or in other words, whether the property split is fair.
Separated couples should consider formalising a property settlement, either by entering into Consent Orders or a Binding Financial Agreement. Whilst Consent Orders must be approved by the Courts, Binding Financial Agreements do not need to be. A property settlement is not final or binding unless it is formalised through one of these methods.
If parties cannot reach agreement about property settlement, they can ask the Court to decide.
Married couples have 12 months from the date of divorce, whilst de-facto couples have 24 months from the date of separation to apply for property settlement.
If you need to negotiate a property settlement, or are seeking to formalise your agreement, book in an initial conference with us to discuss your options and next steps.