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 family lawyer can help you negotiate a settlement with your partner.
Is the law the same for married and defacto property settlements in NSW?
Yes, the law relating to property settlements is the same whether you are married or whether you are in a defacto relationship. An exception to this is if you were in a defacto relationship and you separated before 1 March 2009.
A defacto relationship can exist between two persons of different sexes. A defacto relationship can also exist between two persons of the same sex. A person can be in a defacto relationship even though they are legally married to someone else or they are in a defacto relationship with another person.
What is a Separation Agreement?
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 family lawyer can help you negotiate a settlement with your partner.
Mediation can also help. At mediation you are assisted by an independent person to negotiate an agreement.
If a settlement is reached it should be formalised. That can be done by Consent Orders made by the Family Court 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.
In fact, 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 division of property should they separate. These Financial Agreements are binding (provided that they meet the conditions set out in the Family Law Act).
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 defacto 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).
What are the steps taken to divide property in a settlement?
The steps in working out the appropriate division of property are as follows:
value the assets of each party.
determine whether it is just and equitable to make an order.
make an assessment of the contributions made by each party.
make an assessment under s75(2) of the Family Law Act. There are many factors listed in this section to take into account in the property settlement. Most commonly this involves considering the arrangements for children and the income of each party.
determine whether the order which is proposed is “just and equitable”.
What do you need to show to be eligible for spousal maintenance?
In some cases, one spouse may be entitled to spousal maintenance. To be eligible for spousal maintenance you need to show:
That you are unable to adequately support yourself eg. because of caring for children under 18 years of age;
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).
I can not thank Sarah Walker enough for bringing my family custody dispute to an end. The result was fair and the compassion and empathy that Sarah and her wonderful paralegal Nichole gave to me made the process much easier to manage. Sarah is extremely efficient and knowledgeable and her communication skills are exemplary, I only wish I had enlisted her assistance years ago. I am forever grateful to Sarah for getting me through this arduous journey. I highly recommend Sarah to anyone going through complex family law matters.
AH – November 2021
I was recommended Sarah Walker, Lawyer at Turnbull Hill, by a close colleague. It was the best decision I have made this year. Sarah and her Paralegal colleague, Nichole Maude, have been outstanding and highly professional from the moment I decided to proceed with my divorce. They have handled all issues promptly and efficiently, beyond my expectations. They are an absolute credit to Turnbull Hill Lawyers. All options were explained to me fully and this has put me at a definite advantage from my ex-husband. I would highly recommend Sarah Walker and Nichole Maude to anyone who is seeking the best Lawyer and Paralegal in NSW.
AP – May 2021
It feels surreal. I don't think it has set in yet, although I feel more relaxed.
Thanks for all your hard work, it has finally come to fruition. I know Chris is very happy. I hope to thank you in person soon.
James R – 29 January 2018
We all have been very fortunate to have you on board for all these years.
I know my family are very grateful of your efforts and especially over the last 2 years
Chris R – 25 January 2018
Dear Sarah & Allysha
A huge thank you to you both for making a painful experience that much easier and less frustrating. You’ve both been an absolute pleasure to deal with and I appreciate your timely and professional manner over the previous months.
JC – 10 October 2018
Get Help
Please provide details regarding your matter so we can assist you.
We respond in 24 hours or less!*
*During regular business hours
Liability limited by a scheme approved under Professional Standards Legislation
Subscribe for all the latest legal news and updates
"*" indicates required fields
We wish you and your family a Merry Christmas and a prosperous New Year. We will be closed from 5pm on 22 December 2023 and will reopen on 2 January 2024.