Family Law Property Settlements

What is a property settlement?

In a family law context, a property settlement is the division of assets, liabilities and superannuation arising out a relationship breakdown regardless of whether it is a de facto relationship or marriage.

How does the court determine the division of property?

There are several steps that a court will go through to determine what is the appropriate division of assets.

Generally, the steps to assess a family law property settlement are:

  • 1. Establish the property pool available for division. This is done at the current date (i.e. the date the matter is before the court) rather than the date of separation (although the financial circumstances at separation are still important).
  • 2. Look into the past at the history of the relationship and determine each party’s contributions to the relationship both prior to and since separation. This includes financial contributions, non-financial contributions and homemaker-type contributions. Did one party contribute more than the other or were contributions about equal?
  • 3. Look into the future and determine whether there needs to be any adjustment to one party because of future considerations. This involves looking at a range of factors such as but not limited to the respective ages of the parties, earning capacity, health conditions and the parenting arrangements for any children.
  • 4. Having completed steps 1-3 above, the court will step back and consider whether it is appropriate for property settlement orders to be made and whether they are just and equitable in all the circumstances. This last step means there is a range of possible outcomes for any given situation.

Tackling your property settlement

If you have separated, it is important to receive early advice as to where you stand in any potential property settlement. This will also assist in identifying any red flags or other issues early, thereby maximising your chances and opportunities to address same, much in the same way as an early medical diagnosis from a doctor can improve your chances of a positive outcome.

For example, has consideration been given to whether the family home will need to be sold or transferred to one party? If you want to retain the family home in your sole name, do you have the ability to take on any mortgage and afford a settlement payment to the other party if it is required?

While we can provide you with legal advice and representation as to your property settlement, we cannot provide you with accounting, financial or mortgage advice – as a result, we have developed strong relationships with professionals in these key areas and can offer warm referrals to our clients. In this way, our team will work closely with your team in order to progress your property settlement to a quick and cost-effective resolution.

We are particularly mindful that legal costs can be expensive, and clients understandably do not want to spend lots of money fighting over a small property pool or if it is not commercially savvy to do so. We provide practical risk advice in this respect, and will act on your instructions to negotiate or litigate.

Don’t wait too long however before pursuing your property settlement – de facto couples have only two years from the date of separation to apply to court for financial or property orders arising out of the relationship breakdown, whereas married coupled have one year from the date of divorce. While it is possible to apply for an extension of time, there is no guarantee you will be successful and the process would likely incur additional legal costs that could have been avoided.

Contact Culshaw Miller Badenoch Lawyers today to book an initial consultation or make a general enquiry. Our Melbourne lawyers are well-equipped to provide legal advice and representation for you in your family law property settlement, no matter how simple or complex.