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Property Settlement & Financial Disputes

The process of dividing up property and assets after a divorce can be messy. At the Family Lawyer for Men, we want to make this process as simple, stress-free and cost-effective for you, without compromising our standard of excellence and strategy.

For a free 20 minutes consultation with one of our experienced lawyers, contact us today.

Frequently Asked Questions

Typically, if you and your ex-spouse cannot come to an agreement between yourselves, you will have to negotiate a settlement through lawyers. There is usually no agreement when there is a dispute in the value of assets or liabilities, or how much of the property pool each party should receive. The property settlement process would be as follows:
  1. Negotiation
    Both of you have to provide each other will all your financial documents, including bank statements, tax returns, and payslips. Both of you may make offers of settlement, with proposed division of the asset pool. You can either accept, reject or give a counter-offer.
  2. Mediation
    If there is no agreement through negotiation, the next step may be for the parties to attempt mediation. Mediation can be facilitated through a private mediator or through a family dispute resolution service. In most cases, you are allowed to have a lawyer assist and advocate for you during mediation.
  3. Going to Court
    If mediation is unsuccessful, the party may have no choice but to take the matter to Court. The process of going to Court does not mean that a Judge makes a decision for you. The both of you are still allowed, and are encouraged, to come to an agreement even after you have made a Court application. The process of going to Court often puts pressure on both parties to come to an agreement.

    Note: There are exceptions as to whether you can go to Court. For example, you must need to have attempted mediation and obtained a ‘Section 60I Certificate’ before applying to Court. Or, if you have been divorced for more than 12 months, you may also not be able to bring your matter to Court. For more information on whether you are able to go to Court, please contact us.
  4. Agreement
    Once an agreement is reached, you and your ex-spouse may decide to prepare Consent Orders or a Financial Agreement to formalise the agreement. For more information on the difference between Consent Orders and a Financial Agreement, please see below.
Section 79 of the Family Law Act 1975 sets out the steps for a Court to determine property division. They are as follows:
  1. What is the asset pool?
    The total value of the property pool needs to be determined. This consists of all assets, liabilities and superannuation of both you and your ex-spouse. It does not matter if an asset or liability are under one of your names only, they are usually considered as part of the joint asset pool. Assets may be monies in bank accounts, real estate properties, motor vehicles, shares, businesses and so on. Liabilities may be mortgages on properties, credit card debts, HECS debts and so on. For example, if the home that you and your ex-spouse lived in during your marriage (‘former matrimonial home’) is under your sole name, this is still considered part of the joint asset pool. To give another example, let’s say the former matrimonial home is the only asset that you and your ex-spouse have. If the formal matrimonial home is valued at $1,000,000, with a mortgage of $500,000, the net asset value of the joint asset pool is $500,000.
  2. What are your contributions?
    Next, the Court will look at both of your contributions to the relationship and after separation. Both financial and non-financial contributions are considered. It is a common misconception that if one party worked full time during the relationship, and the other party was a homemaker, that the party who worked made more contributions – this is not true. The Court may consider both parties to have made equal contributions, especially if it has been a long marriage. If you or your ex-spouse are found to have greater contributions, the Court may award the one with greater contributions with a larger portion of the asset pool.
  3. What are your future needs?
    Next, the Court will look at whether you and your ex-spouse have any future needs. This could include your age, health or medical conditions, income-earning capacity, responsibilities to care for a dependant, and so on. If you or your ex-spouse are found to have greater future needs, the Court may award the one with greater future needs with a larger portion of the asset pool.
  4. Is the division just and equitable?
    Lastly, the Court will see if the proposed settlement is fair and reasonable by taking into account all the above relevant considerations, and considering whether it can be practically carried out without causing prejudice to a party.
There are two ways for you to legally formalise an agreement with your ex-spouse for property matters. Both have the same legal effect, meaning once this is formalised, if either of you breach the order or agreement, you can bring this to Court.

Consent Order

Consent Orders are filed in the Court. A Judicial Registrar of the Court will have to review and approve, that is to stamp a seal of approval, on the document. It will only be sealed by the Court if the property settlement is considered to be fair and reasonable. Consent Orders can include both parenting and property matters. You and your ex-spouse can prepare Consent Orders by yourselves without needed lawyers to advise you on them. Financial Agreements Financial Agreements, also known as Binding Financial Agreements (BFAs), is basically a contract between you and your ex-spouse. It does not need to be considered fair and reasonable by the Court. Financial Agreements can only include property matters. You and your ex-spouse need to seek independent legal advice on each end to advise you on the Financial Agreement.
Yes, time limits apply to family law property settlements. You can only file property proceedings in Court if it is:

  • Within 1 year of your divorce order taking effect; or
  • Within 2 years of the separation date for your de facto relationship.
For information on whether you are in a de facto relationship, see below. If your time limit has expired, there are limited exceptions for you to make an application in Court. You should contact us as early as possible to consider your legal pathways.
A relationship is a ‘de facto’ relationship when two people are not married but live together on a genuine domestic basis. The same applies to same-sex couples. If a de facto relationship has broken down, you have 2 years from the date of separation to apply in Court for a property settlement. If your relationship was less than 2 years, the Court may still hear your application if the following applies:

  • There is a child of the relationship;
  • The relationship is registered with the Registry of Births Deaths and Marriages;
  • You or your ex-spouse made substantial financial or non-financial contributions to the relation.
A de facto relationship can be registered with the Registry of Births Deaths and Marriages. A reason to register a relationship is so you do not need to provide evidence to prove that you were in a de facto relationship to apply for a property settlement.
If either you or your ex-spouse disagree that you were in a de facto relationship, the Court considers the following factors to determine this:

  • The duration of the relationship;
  • The nature and extent of your common residence;
  • If a sexual relationship exists;
  • The degree of financial dependant or interdependence, and any arrangements for financial support;
  • The ownership, use and acquisition of the common property;
  • The degree of mutual commitment to a shared life;
  • If the relationship is registered in a State or Territory;
  • The care and support of children;
  • The reputation and public aspects of the relationship.
The way an inheritance is considered in a property settlement is based on a few factors:
  • When the inheritance is expected to be received;
  • The value of the inheritance in the asset pool;
  • Whether the other party made any contributions to the inheritance (e.g. if the husband’s mother left an inheritance, but the wife cared for the mother-in-law before she passed).
The Court may treat the inheritance as an asset if it has been received. Or, the Court may treat it as a financial resource if it is expected to be received.
If a party is years away from receiving an inheritance (e.g. if a party’s parents are very wealthy and alive), there is no question of inheritance for the property settlement.
Yes, all properties owned by a party are considered to be part of the asset pool, including properties held overseas. However, if the other party has assets overseas, this is a tricky situation as it may be difficult to prove that they have assets overseas. If you or your ex-spouse has property overseas and you need legal advice, you should contact us as early as possible to consider your legal pathways.