Property Settlement Guide: How Assets are Divided After Divorce
In the event of a breakdown of marriage or a de-facto relationship, a property settlement plays a crucial part within the legal process and ensures that property and finances are fairly divided between both parties.
The division of property can be a significant issue to consider, during the often stressful process of separation or divorce. A comprehensive understanding of divorce property settlement is important in ensuring that a person achieves the best outcome for themselves and their children.
Here is everything you need to know about divorce property settlements.
What is Property Settlement?
Property settlement refers to the division of assets in the event of a divorce, annulment or breakdown of a de-facto relationship. Regardless of whether a couple were married or not, the legal steps involved within determining the appropriate division of assets are generally the same.
In particular, ‘property’ refers to any capital assets; this includes everything from finances and superannuation, to your home, cars, liabilities and debts, and even inheritances.
How does a property settlement work?
Australian family law encourages parties to reach their own property settlement agreements – this tends to be more efficient and a less stressful process. A property settlement aims to finalise all financial issues between the parties.
Usually, a property settlement starts with mediation or family dispute resolution (FDR). If you’re able to agree, you can decide whether to:
- Enter into a binding financial agreement (see below); or
- Ask a court to approve the agreement by making consent orders; or
- Have the agreement remain as an informal agreement
Whatever path you choose, and particularly if you decide to keep the agreement informal, we recommend that you seek legal advice before making any decisions.
How is property settlement calculated?
Division of property is usually a complicated process – whilst it is often assumed that property is split 50/50, each case is reviewed independently.
After identifying the property pool, the court will come to a decision that is based on a number of factors. This includes ongoing and future financial needs, as well as the contributions (both financial and non-financial) that were made by each person throughout the relationship.
Prior to the calculation of property settlement, it can help to understand the requirements of Australian family law, and it is crucial that you have excellent legal advice right from the start.
Who can apply for a property settlement?
A person can apply for a property settlement whether they were married or in a de-facto relationship.
If a person was married, they can apply for a family law property settlement once separated, and up to 12 months after a divorce order.
If you’ve been in a de facto relationship for at least two years, or you have had one or more children with your former partner, you can apply for a property settlement up to 2 years after separating.
The 4 Step Property Settlement Process
Whether there is an agreement for property settlement, or the parties require court intervention to work things out, numerous provisions within the Family Law Act are utilised in guiding a court throughout the property settlement process.
These basic principles can be summarised within four main steps:
Step 1 – Identifying and valuing the parties’ property
This step includes assets and debts (or other shared obligations). These things are considered to be in the pool of property that can be divided. Pets and superannuation can also form part of the property pool.
For property acquired before the relationship or after separation, the circumstances of the situation will dictate any division. If you’re concerned about what property may form part of the property pool, contact us to discuss your situation.
Step 2 – Consideration of each party’s contribution to the property
Both financial and non-financial contributions can be considered within a property settlement.
For example, one party may have made significant financial resources contributions, earning a good income that allowed the purchase of a home. The other party may have looked after the children, the home and supported the other party in career development. This non-financial contribution will be viewed as a contribution to the family’s welfare.
Contributions can also be direct and indirect. For example, one party directly contributes by paying the deposit and mortgage on a house. The other party indirectly contributes by paying bills, buying food and other household goods.
Step 3 – Consideration of each party’s future needs
A court will work out what financial needs each party will have into the future. It will then consider other issues such as their age, health, ability to earn an income, responsibilities for dependent children and any children with special needs, and whether a new partner is financially supporting either party.
Often, a settlement is adjusted in favour of the party in the weaker financial position.
Step 4 – Consideration of whether the settlement is fair
A court will then decide whether the proposed settlement is fair. In family law, this is known as a just and equitable settlement.
What happens if the parties agree on a property settlement?
If the parties agree, usually as a result of mediation or family dispute resolution, they can apply to court for consent orders – this is a written agreement, approved by court.
Otherwise, they can make a binding financial agreement (BFA). This is a written agreement that sets out how the property is to be divided. It may also deal with other issues such as spousal maintenance and child support.
Both consent orders and BFAs are enforceable in the Family Court. If one party breaches the agreement, the other party can apply to the Family Court for enforcement under Australian family laws.
What happens if the parties don’t agree on a property settlement?
If you can’t agree on a property settlement, you may need to apply to court for orders about how to divide up the property. This will involve an extended hearing and usually costs more, takes longer and is much more stressful. It may take months or years for a hearing to conclude so that a court can make its decision.
A court will base its decision on the four-stage divorce property settlement process outlined above.
What information will I need to provide to my lawyer?
As a rule-of-thumb, the more information you can provide to your lawyer about your financial circumstances, the better. Information includes:
- Bank and mortgage documents
- Payslips and rent receipts
- Bills and evidence of household expenses
- Tax returns
- Credit card statements and loan statements
- Business profit and loss statements
- Superannuation statements
- Centrelink benefit statements
- Evidence of children’s expenses, such as school fees and invoices for activities
- Share dividend statements and details of any other investments
Once we’ve reviewed all your documents, we’ll be able to assess how to proceed.
De Facto Relationship Property Settlements and the Family Court of Australia
Previously, the Federal Circuit Court and the Family Court would only make orders related to financial matters in cases where the parties were married, with the NT and ACT being exceptions. Throughout this process, de facto financial disputes and property settlements would be managed by court proceedings in state and territory courts.
Currently, the Family Court and the Federal Circuit Court can now make orders following the breakdown of both marriages and de-facto relationships.
Divorce Property Settlement Examples in Australia
Consider the following example of a divorce property settlement in Australia:
A previously married couple (Amy and Joe, for example) have recently had a divorce.
Lets run through a simple version of the 4 step property settlement process in order to determine the final result.
Step 1: Identification of Assets
The balance sheet of Amy and Joe is as follows:
- Cash: $200,000
- Their home: $1,700,000
- Holden car: $40,000
- Holden car: $60,000
- Mortgage: $700,000
- Amy: $100,000
- Joe: $100,000
With these figures in mind, the net value of the couple’s assets can now be calculated.
Assets – Liabilities + Superannuation = Net Asset Pool
2,000,000 – 700,000 + 200,000 = 1,500,000
Both parties have a total of $1,500,000 in assets between each other.
Step 2: Identify Contributions
Now, the contributions of each party to the relationship should be identified, negotiated and calculated.
They will need to look at both financial and non-financial contributions.
In this case, neither party owned any property prior to their marriage. Each party has equal superannuation amounts, and have kept their accounts separate. They are also both working and have earned similar amounts.
As a result, financial contributions are largely equal. However, whilst Joe has taken on parenting responsibility, Amy has made further non-financial contributions in the form of taking on more parenting responsibility for the couples 2 children – as a result, the couple have agreed that Jane will receive a 3% adjustment.
Step 3: Considering Future Needs of Each Party
Given that there are 2 children in question (who will still require care for many years), an adjustment to the settlement is required, in favour of the primary carer.
While Joe will be caring for his children often, the primary carer in this case is Amy. As a result, Amy will receive an adjustment of 2% (this adjustment is often between 2% – 5%).
Step 4: Is the Settlement Just and Equitable?
Given that each party has made similar financial contributions and that Amy has taken on some more responsibility in the form of parenting arrangements, the settlement seems fair.
The Final Result
With the aforementioned process in mind, Joe will be receiving 45%, while Amy is receiving 55%.
This means that Amy will receive $825,000, while Joe receives $675,000.
It is important to keep in mind that while this division of property has been decided, determining who keeps the family home is a separate consideration.
Family Law: Getting Property Settlement Legal Advice
When it comes to divorce property settlement case studies in Australia, our experienced team works hard to ensure that you achieve the best possible outcome in the event of a divorce or separation.
We take pride in being amongst the top family lawyers in Sydney. With our testimonials and 5 star reviews in mind, you can be sure that our skilled lawyers will work with you for the best outcome for your family, meeting expectations, working within short time frames, and putting communication first in order to achieve the resolution you are seeking.
Get in touch today to discuss your situation and see how our experienced family lawyers can work with you.