we are here to help
Property Settlement Lawyer Melbourne
How We Can Help
Property settlement is not only about the family home. A fair and workable resolution requires a complete view of the assets, liabilities and financial resources connected with both people, followed by careful consideration of contributions and future circumstances.
Aston Legal Group advises clients in Melbourne and across Victoria on property settlements after marriage and de facto relationships, including matters involving more substantial or complex financial interests.
What is included in a property settlement?
Prior to commencing Court proceedings seeking a property settlement (by filing an Initiating Application for Financial Orders), parties should make a genuine effort to resolve their matter outside of the court system wherever it is appropriate to do so. If parties are unable to resolve their matter without resort to litigation, an application can be filed at any time after separation. Property settlements can be finalised prior to divorce but court proceedings for a property settlement should be commenced within 12 months of a divorce. There is a common misconception with property settlements that the parties assets will be divided equally between the parties however, this is not always correct. The Family Law Act sets out the factors which the Court takes into consideration when determining a property settlement.
The Process of a Property Settlement
Identify assets, liabilities and financial resources: The first step taken by the Court in determining a property settlement is identifying all items in the parties’ joint asset pool (which may be either jointly owned by the parties or solely owned by one of the parties). The items in a joint asset pool include not only real estate, bank accounts, motor vehicles and shareholdings but also all liabilities including mortgages, credit cards and personal loans. Each asset identified as forming part of the asset pool will need to have a value attributed to it. In circumstances where there is disagreement between parties of the value of assets or where it is difficult to attribute value to an asset, a professional valuer will often need to be engaged to perform an expert valuation.
Identify contributions made by the parties: After determining the asset pool, the Court will take into consideration the contributions that each party has made to the asset pool. The Court may then make adjustments in either party’s favour depending on such contributions. These contributions can include both financial and non-financial contributions and both direct and indirect contributions. Financial contributions can include personal income, redundancy payments and improvements to the value of assets as well as gains or windfalls, such as inheritances. Assets owned by a party prior to commencement of the relationship, known as ‘initial contributions’, are also included as financial contributions. Non-financial contributions typically include a party’s role as homemaker or having primary care of the parties’ children.
Identify the Future Needs of the Parties: The Court must also assess what, if any, the future needs of each of the parties are. This requires the Court to take into account a number of factors including age, health, income earning capacity, financial resources of each of the parties and the parenting arrangements and responsibilities of each of the parties. The Court then determines whether any percentage adjustment should be made in recognition of these factors.
Just and equitable: The final step in the Court’s process of determining a property settlement is to ensure that any orders it makes are just and equitable.
Property Settlement Is Not a Fixed Formula
There is no automatic 50/50 division. The outcome depends on the facts and must be just and equitable in all the circumstances.
Advice early in the process can help you understand the financial picture, preserve relevant records and avoid making commitments before you know their effect. It can also identify tax, valuation, corporate or superannuation issues that may require input from another qualified adviser.
What Forms Part of the Financial Picture
The property pool may include assets and liabilities held in either name, jointly or through other structures. Depending on the matter, relevant interests may include:
- the family home and other real estate;
- bank accounts, shares and other investments;
- businesses, companies, partnerships or trusts;
- superannuation interests;
- vehicles, valuable personal property and companion animals;
- mortgages, loans, tax liabilities and credit debts; and
- other financial resources or interests.
Ownership on paper is relevant, but it does not necessarily determine the final outcome. The nature, value and control of each interest need to be understood.
How Property Settlements Are Assessed
Under the current property framework summarised by the Australian Attorney-General’s Department, the decision-making process involves:
- identifying the parties’ property and liabilities;
- assessing financial and non-financial contributions, including contributions to the welfare of the family;
- assessing current and future circumstances, such as health, earning capacity and care or housing needs for children; and
- considering whether the proposed outcome is just and equitable overall.
Where relevant, the economic effect of family violence can be considered in the assessment. Every matter turns on its own evidence; a percentage from another person’s case is not a reliable guide to yours.
Disclosure and Reliable Valuations
Separating couples have an ongoing duty to provide relevant financial information and documents in property matters. Disclosure supports informed negotiation and allows assets, liabilities and financial resources to be identified and valued.
The documents needed depend on the asset pool. They may include tax returns, bank and loan statements, superannuation information, company or trust records, financial statements and valuation material. Consequences can follow if a party does not comply with disclosure obligations.
Do not conceal, transfer, dispose of or interfere with property to try to influence the outcome. Obtain advice promptly if you are concerned that assets may be sold, moved or withheld.
Reaching and Formalising Agreement
Many property matters resolve without a contested final hearing. Options can include negotiation, mediation or another dispute-resolution process. If an agreement is reached, it should be formalised in a legally effective way – commonly through consent orders or, where appropriate, a financial agreement.
An informal agreement may not provide finality or prevent a later claim. Independent advice helps each person understand the effect of the proposed terms before they are formalised.
Property Settlement Time Limits
Different time limits apply to married and de facto former partners:
- after a divorce becomes final, a married former partner generally has 12 months to apply for financial or property orders; and
- after a de facto relationship breaks down, an application generally must be made within two years.
Permission to apply out of time may be available in limited circumstances, but it is not automatic. If a deadline may be approaching or may already have passed, obtain advice promptly. Married couples can deal with property before applying for or finalising divorce.
Discuss Your Property Settlement
The sooner the financial picture is understood, the easier it is to give advice grounded in the actual asset pool. Aston Legal Group offers a free consultation across its family-law services, including property settlements.
Testimonials
important things you should know
Important Things You Should Know about Property Matters
Before commencing court proceedings, parties are generally expected to make a genuine effort to resolve their property matter through negotiation or dispute resolution where appropriate. If agreement cannot be reached, an application can be filed with the Court after separation, subject to applicable time limits.
There is no automatic or equal division of assets. The Court considers:
- All assets and liabilities forming the joint asset pool
- Financial and non-financial contributions made by each party
- Future needs, including age, health, income capacity, and care of children
- Whether the outcome is just and equitable
Each matter is assessed on its own facts.
Superannuation is treated as property under the Family Law Act and can be divided between parties. This is usually done by splitting superannuation between funds, not converting it into cash. While equalisation is common, it is not automatic and depends on the circumstances of each case.
Yes. Parties can finalise a property settlement once they are separated, even if they are not yet divorced. This can be done through negotiation, legally binding agreements, or court orders.
Married couples must generally commence court proceedings within 12 months of divorce. De facto couples have two years from separation. In limited circumstances, extensions may be granted, but legal advice should be sought as early as possible.
Not necessarily. Many people reach agreement through negotiation or dispute resolution and ask the Court to make consent orders. Court proceedings may be needed where information is withheld, agreement cannot be reached, urgent protection is required or another process is unsuitable.
“Liberty is the right to do what the law permits.”
Initial Discussion
Speak with our team to outline your situation and understand how property settlement laws may apply to you.
Obligation-Free Consultation
We take the time to understand your financial position and provide clear guidance on your options and next steps.
Let Us Get to Work
With a clear plan in place, we work towards resolution through negotiation or court processes, depending on what is appropriate for your matter.
We’re With You. All The Way Through.
If you are looking for a property settlement lawyer Melbourne clients rely on for clarity and practical advice, our team is here to help.