Property Settlements

We are specialist Family Lawyers.

We guide you through your property matter whether your separation has been amicable … or not so amicable. There is no ‘one sized fits all’ solution for how to divide your money and property when you separate as every family situation is unique.

We will always use Court as a last resort and do our best to minimise your legal fees. Most of our property matters can resolve without Court and will be finalised by Consent Orders. These are agreements that are registered with the Federal Circuit and Family Court of Australia and ‘sealed’ with the court stamp to ensure they are legally binding. They ensure there is no stamp duty payable on any transfer of property and that neither party can have a future claim on further property (ie if one of you wins the lotto or has a family inheritance).

Oftentimes, clients will consult with us via a Strategy Session soon after they separate so that we can assess their situation and give them proposed ‘next steps’ and things that they can start actioning themselves. This assists to remove any confusion and empower clients to have a better understanding of how property law applies in their situation. In that session we explain “The 4 Step Process” as set out in the Family Law Act 1975. We also give clients tips on how to ascertain the value of their property pool and assets and other specific factors that apply to their matter

You may have reached an agreement (or partial agreement) with your ex partner directly through negotiation or mediation.  We can assist you to draft Consent Orders or a Binding Financial Agreement to ensure your agreement is legally binding. If you do not formalise your property settlement via these options then you leave yourself open for future claim. You also may not be eligible for stamp duty exemptions.  Superannuation spitting cannot be effected without Consent Minutes of Order or a Binding Financial Agreement.

There is a misconception that lawyers will complicate and prolong the process however we find that we often provide the peace of mind about the process and can be more efficient.

The risk of a DIY property settlement and not properly formalising your agreement is:

  • DIY is not legally binding! Informal agreements are very rarely binding even if signed by both of you and witnessed by a Justice of the Peace. We’d say they are not worth the piece of paper they are written on.
  • People change their mind – time lapses and new partners come on the scene
  • You do not ensure you are exempt from paying Stamp Duty on the transfer of the family home or investment properties
  • You will not ensure you get any Capital Gains Tax Rollover relief
  • You leave yourself open for your ex partner to make a more advantageous claim in the future. You should instead ensure that your financial ties are severed so that you can move on with a ‘clean slate’
  • If not formalised, the asset pool remains available for division between you and is based on the value of assets as at the date of the negotiation or Court date (not the date of separation). The value of assets change over time and superannuation generally increases.
  • you cannot split superannuation through a DIY agreement

Consent Minutes and Binding Financial Agreements are legally enforceable and set out what to do if one party doesn’t do what was agreed (ie if they fail to make a cash payment or sell a property). This provides greater options around Enforcement whereas informal agreements cannot be enforced.

We often assist clients who have spent a lot of their time and attempted to DIY property settlement but their Consent Minutes have been requisitioned by the Court for various reasons.

If more negotiation with your ex partner is needed then we can discuss options with you such as instructing us to negotiate or put proposals to your ex partner (or their lawyer) or attending lawyer assisted mediation with you. We attend hundreds of mediations each year with our clients.

If you have already attempted mediation and been issued with a s60I certificate and need to go to Court then rest assured we conduct a large amount of Court work. Sometimes in that situation we will still advise clients to try other options first before going to court. If Court is needed then our solicitors will give you the option of attending Court hearings without a barrister so as to minimise your legal fees.  We also are experienced in attending property Conciliation Conferences at the Federal Circuit and Family Court of Australia.

Unfortunately, sometimes urgent Court proceedings are required where it may be appropriate to seek urgent spousal maintenance orders, injunctions or the right to remain living in the family home.

It’s important to know that there are time limits with the Family Court to apply for property orders (if you have been unable to reach an agreement). If you are divorced the time limit is 12 months from separation and if you were in a de facto relationship the time limit is 2 years from the date of separation. It can be very difficult to seek leave (permission) from the court after this time lapses but if the time has lapsed please let us know and we will talk you through the exceptions.

What We Do

  • De Facto and Spousal settlements
  • Direct Negotiation with your ex partner
  • Lawyer assisted mediation
  • Consent Minutes of Order and Binding Financial Agreements
  • Court Work and Representation
  • Pre Nuptial Agreements
  • Superannuation splitting
  • Unbundled legal services
  • Deferred fee options

Fequently Asked Questions

Property Settlements

  • De Facto Questions

    I’m not Married. Do I have the same Rights as a Married couple?

    There were some major changes made to de facto law in Australia in 2008 which effectively resulted in de facto couples separating after 1 March 2009 being able to seek property adjustment orders pursuant to the Family Law Act 1975 (in the Family Law Courts). You will also be able to easily seek parenting orders through the Court. Western Australian residents are still dealt with pursuant to their own State legislation and State Family Court.

    The Family Law Act sets out the threshold requirements to be able to make a claim for property in the Court. Importantly, the relationship must have existed for at least 2 years. The 2 year period can be a continuous period or over stages.

    If the relationship has not existed for at least 2 years, you can still apply to the Family Law Courts for a property order if:

    • you have a child; or
    • you made substantial contributions and it would result in a serious injustice if yo were not allowed to; or
    • the relationship was registered under a prescribed law of the Territory or State.

  • Will the Court recognise my relationship as being De Facto?

    The meaning of a de facto relationship is defined under the Act if:

    • the persons are not legally married to each other; and
    • the persons are not related by family; and
    • having regard to all the circumstances in the relationship, they have a relationship as a couple living together on a genuine domestic basis

    In determining whether the relationship is one of a couple, the Act identifies the following types of things to assist to make that determination: duration of relationship, whether there is a sexual relationship, whether the couple lives together, financial interdependence, ownership of property in joint names, the care of children and whether the public viewed the couple as being so.

    You will have protection as a de facto couple whether you are from the opposite or same sex.

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