Property Settlement - Marriage

What happens to property owned when people are in a marriage?

If you are married and separated you will probably want to know what will happen to property owned by you and your spouse...

Agreements

If your relationship breaks down, you may be able to sort out what to do with the property of the relationship in a friendly way with your spouse.

Alternatively, you may need assistance to reach agreement. Your solicitor may help you negotiate a settlement with your spouse. Often mediation can help. At mediation you are assisted by an independent person reach agreement about the division of property.

If a settlement is reached it should be formalised. That can be done by Consent Orders made by the Family Court or by a financial agreement. This provides finality so that neither party can make a future claim. It also provides exemption from stamp duty for assets transferred pursuant to the order or agreement.

In fact, people can enter into financial agreements before they are married or during their marriage (while they are happily together). Such agreements provide for what happens regarding division of property should they separate. These agreements are binding (provided that they meet the conditions set out in the Family Law Act).

Court

If agreement can’t be reached then the matter will go to court, either the Family Court or Federal Magistrates Court.

If you are divorced you need to commence court proceedings within 12 months from the divorce order taking effect (if you are late you have to get permission from the Court to commence your case).

Dividing Property

The law sets out four steps in determining an appropriate division of property. Those steps are:

1. Valuing the property, including superannuation. The law allows the “splitting” of superannuation interests.
2. Assessing the contributions made by each party. Examples of contributions are: earning money during the relationship, inheriting an asset, homemaking duties and looking after children.
3. Assessing the future needs of each party and the resources of each party. For example, if one person has the major responsibility for caring for the children, then they will receive an adjustment in their favour.
4. The outcome must be “just and equitable”.

Spousal Maintenance

In some cases, one spouse may be entitled to spousal maintenance. To be eligible for spousal maintenance you need to show:

1. That you are unable to adequately support yourself eg. because of caring for children under 18 years of age;
2. That your spouse is reasonably able to pay maintenance.

If you are divorced you must apply for spousal maintenance within 12 months of your divorce order taking effect (if you are late you have to get permission from the Court to commence your case).

Our Property Settlement Team:

• Alan Wright (Accredited Family Law Specialist)
• Rebecca Flick
• Matthew Carney
• Ashlea McKenna
• Karlee Amor

Our Promise:

• A focus on early resolution - to save you time & money
• Highly professional and friendly service at all times
• Highly qualified team, should court be required
• Complete confidentiality at all times
• Fast, efficient and courteous service
• The best possible result for you and your family