Property settlements

Relationship breakdown: Properly protecting your property interests

At the end of a marriage, it is necessary to determine how your assets and financial resources will be divided up. A "property settlement" is the term used to describe who gets what after the end of a marriage. The Family Law Act 1975 (Cth) covers all areas of property division for married couples.

The "property" subject to settlement can include your home, any other real estate, funds in banks or other financial institutions, any other personal property and superannuation.

There is no set formula for working out how your property should be divided. There is no presumption that your property will be divided 50-50, or 60-40, or in any other arbitrary proportion. The Family Law Act 1975 (Cth) sets out the three main things that must be taken into account when a judge has to consider how property is to be divided:

1. Assets and their values

The court will look at the current market value of assets owned by each of the parties, such as land, bank accounts and superannuation. It does not matter when the asset came to be owned.

2. Different types of contributions

These include:

• Who earned the income that came into the marriage;
• Who cared for any children living with the parties;
• Who performed the many and varied household tasks for the parties and children.

3.Future financial position

Some examples are:

• How much income each party is able to earn;
• The age and state of health of each party;
• The need for each party to have a reasonable standard of living.

If terms of settlement are agreed upon between the parties, a family lawyer can prepare an application for consent orders, to be lodged at the Family Court. Some of the benefits of consent orders include:

• They are binding, having the same legal force as a decision made by a judge in court;
• You know exactly what the settlement will be (as opposed to the uncertainty of having a judge decide the matter for you);
• Minimised expense and delay (as opposed to court proceedings).

Before making the consent orders the court will need to be satisfied that the orders are properly drafted and that the terms are just and equitable.

If you cannot agree about how your property should be divided up then you must think about applying to the court so that these matters can be sorted out.

By obtaining legal advice you have a better chance of the court accepting your agreement, because the lawyer will understand the requirements of the court. By choosing us to represent you, you can be assured your interests will be looked after, and that we will do everything to help resolve your problem in as effective a method as possible.