Family Law
December 21, 2023

Did you know family lawyers can assist couples in the property settlement process? They are knowledgeable and highly experienced in all aspects of family law, meaning they can advise their clients on their legal rights and responsibilities. This includes advice on different types of assets such as real estate, superannuation, business assets, motor vehicles, bank accounts, and personal possessions.

After asking essential questions and collecting initial documents, family lawyers will proceed to strategise a plan of action – ideally, one that will be most beneficial for both parties involved. 

Understanding Property Settlements 

When a marriage or partnership comes to an end, you may find yourself asking these two questions:

  • What does a property settlement look like?
  • And how can a family lawyer help?

Property settlement is a process that follows the separation of two parties, whether they were married or in an eligible de facto relationship. This formal division of assets is guided by the Family Law Act 1975 in Australia, and the Family Court and Federal Circuit Court hold the authority to make orders altering the interests of the parties involved.

Seeking legal advice post-separation is the key to understanding one’s rights and entitlements in the property settlement process.

Family lawyers will work with couples to achieve a property settlement that is fair and equitable, taking into consideration each partner’s financial contributions. They are familiar with the relevant legislation and case law – this means the settlement is legally binding. 

Family lawyers can also assist in preparing documents for a property settlement application if an agreement cannot be reached between the parties. As an example, completing the Application for Consent Orders form requires detailed financial information from both parties. 

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What Constitutes ‘Property’?

The term ‘property’ in family law is broadly defined and encompasses various assets to which the parties or one of the parties to a marriage or de facto relationship is entitled. This includes property jointly or solely owned, owned by companies or trusts controlled by the parties, and covers:

  • real estate,
  • cars,
  • funds in bank accounts,
  • shared investments,
  • businesses,
  • superannuation entitlements, and
  • long service leave.

When it comes to the above, there are time limits for applying for property settlements. For marriages, a party has 12 months from the date of the Divorce Order, and for de facto relationships, it’s within two years of separation. The court may grant leave to proceed after the time limit if hardship is established, but this is an expensive process and not guaranteed.

The Five-Step Evaluation Process 

Step 1: Identify and Value the Property

Courts initiate property settlement by identifying and valuing the assets of the marriage or de facto relationship. While some assets, like funds in bank accounts, may not require valuation, others such as real estate, businesses, motor vehicles, and defined benefit superannuation entitlements might need independent valuations. Valuations are done at the time of property settlement, not at the date of separation, making a swift resolution beneficial to avoid the acquisition of additional assets.

Step 2: Decide if There Should be a Property Settlement

Once the court has identified all of the assets, liabilities and financial contributions of both parties, they will move on to decide if there should be a property settlement. The court’s decision is based on determining if it is ‘just and equitable’ (fair) for them to become involved and make changes to people’s property. Generally speaking, this step is satisfied when two individuals have been married or in a de facto relationship and have shared their finances together.

Step 3: Assess the Parties’ Contributions

The court evaluates financial and non-financial contributions made by each party to the acquisition, conservation, or improvement of the property. Non-financial contributions, like homemaking or parenting, are also considered. In cases of long marriages or de facto relationships, equality of contribution may be found. If one party was the primary income earner and the other the primary caregiver, contributions are assessed based on equality, considering gifts, inheritances, and initial property values.

Step 4: Consider Section 75(2) or S 90SF(3) Factors

The court takes into account factors outlined in section 75(2) or section 90SF(3) of the Family Law Act 1975. These include the age, health, income, and financial resources of the parties, as well as whether either party has the care or control of children and child support payments. A percentage adjustment may be made in favour of a party with higher section 75(2) factors.

Step 5: Evaluate Whether Property Settlement is Just and Equitable

A court must make an order for property settlement that is just and equitable. The proposed percentage split is scrutinised in dollar terms, and the court exercises discretion in determining a fair and reasonable property settlement.

Required Documents and Full Disclosure

Parties involved are obligated to make full and frank disclosure of their relevant financial circumstances. This includes income, interests in real property, income earned by legal entities owned or controlled by a party, trust details, disposals of property since separation, and liabilities.

Failure to disclose may result in consequences imposed by the court. Parties must adhere to these disclosure obligations to maintain the integrity of the property settlement process and facilitate a fair and just resolution.

Complex financial situations, involving various assets, businesses, trusts, and overseas holdings, require experienced property settlement lawyers. Nardi Lawyers collaborates with clients’ accountants and financial planners to ensure the best outcome – contact us today.

How Nardi Family Lawyers Can Help with Property Settlement

Obtaining legal advice from an experienced property settlement lawyer is especially important after the breakdown of a relationship. Family lawyers conduct negotiations on behalf of their clients for a fair settlement in challenging circumstances.

Nardi Lawyers offer extensive experience in advising clients on property matters, including complex cases involving companies and trusts. We provide advice on options and entitlements, aiming for a negotiated settlement through alternative dispute resolution. If a settlement outside the court is not possible, they advocate in court for the best possible outcome.

To contact Nardi Lawyers, the award-winning family lawyers in Mernda, send our friendly team a message.


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