FAQs

A property settlement is the division of property owned and acquired during a marriage or de facto relationship.

The same general principles apply in determining the entitlements of a party regardless of whether you were married or in a de facto relationship.

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis.

There is no formula used by the Family Court to divide property and no one can tell you exactly what orders a Judge will make as every case is different. As lawyers we can provide you with estimates only as the Courts have a wide discretion in making orders that may alter the interest of parties in property. 

The Family Law Act 1975 sets out the general principles the Court considers when determining financial disputes arising out of the breakdown of a marriage or de facto relationship.

1. To identify and value all the property that is available for division. This includes all assets, liabilities and superannuation benefits of each spouse. The value attributed to each item of property is the current value of the asset and the current amount owing on debts;
2. To consider the financial and non-financial, both direct and indirect, contributions made by and on behalf of each party to the acquisition, conservation or improvement of property;
3. To consider the future needs of each party including:

• whether either party has the care of a child to the relationship;
• the age and state of health of each party;
• the income, property and financial resources of each party;
• the physical and mental capacity of each party for appropriate, gainful employment;
• the disparity in the income earning capacities of each party;
• instances of family or domestic violence;
• commitments that are necessary for each party to support themselves or any other person.

No. You may be able to reach agreement as to the just and equitable division of property by negotiation, mediation or other means outside Court. Our lawyers regularly represent client’s in property mediations with successful outcomes.

At PWB Lawyers we strongly recommend entering into Consent Orders or a Binding Financial Agreement (BFA) so as to formalise any agreement you have reached with your former spouse.

A Consent Order is a written agreement approved by the Court. It has the same effect as if it had been made by a Judge after a Court hearing.

Filing Consent Orders with the Family Court involves the preparation of two documents – the proposed Terms of Settlement (a document setting out what the agreement is and what is to happen with each item of property) and the Application for Consent Orders. If the Court is satisfied with the proposed Terms of Settlement, then it will issue a sealed Order. You do not need to attend Court.

Formalising your agreement by entering into Consent Orders has a number of advantages, including:-

• It finally determines the financial relationship between former spouses so neither can make a further claim on the existing or future assets of the other party;
• It avoids further proceedings;
• It will avoid the payment of stamp duty upon the transfer of any real estate from joint names into the sole name of one party; and
• It makes the agreement legally binding and enforceable at law.

A Binding Financial Agreement (BFA) sometimes just referred to as a Financial Agreement  is a written agreement dealing with any of the property financial resources and/or maintenance of the parties to a marriage or de facto relationship.

Approval from the Family Court is not required for Binding Financial Agreements to be binding. However, very specific conditions as set out in the Family Law Act must be met and both parties are required to obtain independent legal advice.  

Binding Financial Agreements can be entered into following the breakdown of a marriage or de facto relationship. They can also be entered into at other times including before marriage (often known as a pre-nup), before cohabitating with a partner, or during the marriage or relationship. There are particular sections of the Family Law Act relevant to each of these scenarios, and each Agreement must be expressly made under the relevant section.

1. BFAs must comply with strict legal guidelines as outlined in the Family Law Act (1975).
2. They must be in writing.
3. Each person must have received independent legal advice before signing the BFA about the advantages and disadvantages of entering into the Agreement and the effect of the Agreement on their rights.
4. Each person must have signed the BFA voluntarily (free from coercion, duress or undue influence). For example, this means one person cannot tell the other that they will not marry them unless they sign a BFA.
5. The BFA should contain full disclosure of each person’s financial situation.

A prenuptial agreement or “prenup” is a Binding Financial Agreement between couples made before parties marry or enter into a de facto relationship. It generally covers financial matters but may include other issues as well (such as spousal maintenance). In Australia’s family law system, the term prenup is not normally used.

These Agreements address how to divide the assets and resources if a marriage or relationship breaks down, and effectively excludes the Courts and the principles set out in the Family Law Act from determining how the property pool should be divided.

Yes. A BFA can deal with only some of the assets and financial resources of a marriage or de facto relationship.

Parties often wish to quarantine a particular asset or resource (such as premarital property, business interests or family heirlooms) or deal with it in a particular way.  This is particularly common for parties entering into a second relationship who want to ensure that their assets are preserved for the benefit of their children, rather than their new partner or the new partner’s children.

Yes. It is important to note that a Court may set aside an Agreement if there has been fraud (such as non-disclosure of a material matter); an intention to defeat or reckless regard of the interest of a creditor; any duress; undue influence or unconscionable conduct (taking advantage of any weakness of a party); or circumstances have arisen making it impracticable for the agreement to be carried out.

If you cannot come to an agreement with your ex-partner, the Family Court or Federal Circuit Court has the power to make orders for property and financial settlements. 

After filing an Application for property or financial Orders the Court will ordinarily refer the parties to Conciliation in an attempt to resolve their dispute. If no Agreement is reached at Conciliation a Court can determine the division of assets and liabilities after hearing evidence from both parties and any supporting witnesses. 

Yes. Each party has an obligation to make full and frank disclosure of their financial position to the Court and the other party. It is an ongoing obligation.

You do not have to wait until you are divorced to ask the Court for orders about your property or spouse maintenance. However, once you are divorced you have 12 months from the date your divorce order becomes final to file an application for property settlement or spouse maintenance.This timeframe can be waived by the Court only in certain circumstances.

If you were in a de facto relationship, your applications for property or financial settlement must be made within 2 years of the breakdown of your relationship.

Superannuation forms part of the property pool. The law allows for superannuation to be divided or “split” between parties. Splitting superannuation between parties does not convert it to a cash asset and the usual rules relating to the release of superannuation apply (such as reaching preservation age or satisfying requirements for early release such as hardship or illness).

Spouse maintenance is the responsibility a party might have to financially support (maintain) the other person after separation or divorce. It is different to child maintenance and child support.

Generally, a party will only have to pay maintenance if the other party cannot support themselves and the first party has the capacity to contribute to their support. Payments can be made regularly (periodic) or as a lump sum. Periodic payments will not be for an indefinite period.