Property settlement lawyers

Yes, the law relating to property settlements is the same whether you are married or whether you are in a de facto relationship. An exception to this is if you were in a de facto relationship and you separated before 1 March 2009.

A de facto relationship can exist between two persons of different sexes. A de facto relationship can also exist between two persons of the same sex. A person can be in a de facto relationship even though they are legally married to someone else or they are in a de facto relationship with another person.

Property is considered as any assets obtained during and before the marriage or de facto relationship. Depending on the circumstances, these may include:

• Bank accounts;
• Superannuation;
• Investments such as shares, stocks, bonds and cryptocurrencies;
• Real estate, including family homes, holiday houses and investment property;
• Personal possessions, such as vehicles, furniture, jewellery and art;
• Business assets like family trusts and private companies;
• Inheritance received during the marriage; and
• Outstanding debts and other financial obligations.

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 partner. Alternatively, you may need assistance to reach an agreement. Your property settlement lawyer can help you negotiate an agreement with your partner.

If a settlement is reached it should be formalised. That can be done by consent orders made by the Federal Circuit and Family Court of Australia or by a binding financial agreement (separation agreement). A separation agreement 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 financial agreement.

People can enter into financial agreements before they are married (prenuptial agreement) or when they commence living together. They can enter into financial agreements during their marriage or relationship (i.e. while they are happily together).

Such financial agreements provide for what happens regarding the division of property should they separate. These financial agreements are binding (provided that they meet the conditions set out in the Family Law Act).

Related article: A step by step guide to obtaining a separation agreement.

Consent orders are issued by the Court to finalise property arrangements that have been agreed upon by both parties. You must submit a court application along with the proposed orders.

Typically, a lawyer drafts these documents, which are then signed by both parties before being provided to the Court. A court registrar then reviews the documents to ensure they align with the Court's standards.

If approved, the Court seals the orders, which become final and legally binding. Neither you nor your solicitor need to attend court for this process.

Mediation is a mandatory step in property settlement litigation. If an agreement can’t be reached this way, then the matter will go to the Federal Circuit and Family Court of Australia. Here, both parties and their witnesses will provide evidence to the judge, who will then make a final decision that can typically only be appealed in the event of a legal error.

If you were married and are now divorced, then 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).

If you were in a de facto relationship, then you need to commence Court proceedings within two years of the date of separation (if you are late you have to get permission from the Court to commence your case).

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 were married and are now 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).

If you were in a de facto relationship, you must apply for spousal maintenance within two years of separation (if you are late you have to get permission from the Court to commence your case).

Yes, a property settlement agreement can be changed or revoked in limited circumstances. You may request the Court to set aside or vary a property order if:

• A miscarriage of justice has occurred due to fraud, coercion, suppression of evidence (including non-disclosure) or perjury;
• Circumstances have changed since the order was issued, making it impractical to enforce all or part of the order;
• Exceptional circumstances concerning the care, well-being, and development of a child from the marriage or relationship have emerged, resulting in hardship for the child or their caregiver if the order is not updated;
• One party has breached an order, and it would therefore be fair and reasonable to replace the original order with a new one; or
• A proceeds of crime order has been issued against a party or their assets.

Even if one of the above grounds has been met, it remains the Court’s decision as to whether the agreement can be changed.

Parties can also consent to a property settlement order being changed or revoked by applying for a new order with the Court, which would replace the original order.

Lastly, you may attempt to change a final property settlement order by appealing it within 28 days of its issuing. Potential grounds for this appeal include if the judge made a factual mistake or error of law, did not provide sufficient reasons for the decision, exhibited prejudice or failed to implement a fair procedure.

Yes. However, while it is possible to get a divorce before the property settlement, it is important to understand that terminating a marriage does not prevent either party from seeking financial provision thereafter.

The duration of your property settlement will depend on various factors. Cases with few assets to divide typically take less time, whereas more complex cases may last considerably longer.

At Turnbull Hill Lawyers, we take a streamlined and proactive approach to ensure your matters are settled as quickly as possible without compromising on the outcome.

As there are time limits for property settlement applications, you must apply within 12 months of a divorce order or two years of the date of de facto separation.

You are not required to hire a lawyer to divide your assets after separation unless these financial matters are settled through a binding financial agreement. In this case, both parties must engage separate lawyers who will certify that they have obtained independent legal advice.

While hiring a lawyer is not obligatory when applying for consent orders, it is strongly recommended. We will ensure all assets and liabilities have been accounted for, assist you with negotiations, and properly document the agreement.

Contact our family law property settlement lawyers today to get started.