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Property Settlement

Family & Defacto Law services

Investigating and Identifying

Property matters are dealt with under the Family Law Act, irrespective of whether a couple were married or in a de facto relationship. A property settlement these days is no longer simply confined to the marital home or an investment property. Other assets that need to be taken into account include superannuation, shareholdings, family trusts, lottery winnings, inheritances and businesses. There are also taxation consequences that need to be considered as part of the property settlement. With few exceptions, a property settlement application must be commenced within 12 months of divorce, or within two years of separation when relating to a de facto couple.

When determining the settlement of a property, the Court will consider the following;

  1. The combined assets and liabilities of both parties - these will be 'pooled' together and valued;

  2. Each parties contributions to the relationship, including assets brought into the union, income, savings, inheritance, improvements to property and non-financial contributions, in the form of home-maker and parent; and

  3. Other factors, such as the future needs and earning capacity of each party, and who will have the day to day care of the children.

The court will then make adjustments to the 'property pool' in favour of one party, based on the aforementioned considerations. Under the Family Law Act 1975, the court must make a determination that is 'just and equitable'.

Our lawyers encourage both parties to come to an amicable arrangement as to how the assets of the relationship ought to be divided.

We will negotiate on your behalf to ensure that you receive what you are entitled to under the law. If an out-of-court settlement is achieved, we can draft 'Consent Orders' or a 'Binding Financial Agreement', which is formally recognised by the legal system. 'Consent Orders' are orders that both parties have agreed to, however, before they are recognised by the court, the court registrar must review the orders to ensure that they are just and equitable. A 'Binding Financial Agreement' on the other hand, is not reviewed by the court, and although binding, can be overturned by the court in certain circumstances. For example, if it is unjust, or provisions regarding to children are deemed inadequate.

If no agreement is able to be reached between the parties, court proceedings can be commenced to ensure that your interests are protected.

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