Family Law Property Settlements – The Basic
17 January 2023
What is a Property Settlement?
A ‘Property Settlement’ is simply the term used to describe the process of dividing the assets, debts and superannuation entitlements of couples who have separated. Such assets, debts and superannuation entitlements are collectively known as ‘the property pool’.
Are all Property Settlements Legally Binding?
The short answers is no; the only way a property settlement in Australia can be legally binding is if it takes place via Court Orders, including Consent Orders, or a ‘Binding Financial Agreement’.
So if you effect an informal property settlement (e.g. a distribution of assets, debts and superannuation pursuant to a verbal agreement with your ex-partner), such settlement is not legally binding, and your ex-partner may be able to claim more from you at a future time. That doesn’t mean you should refuse to hand over less substantial items to your ex-partner such as the lawn-mower or some bed linen, especially if doing so would cause conflict, but it does mean that you should be cautious about transferring more significant assets pursuant to anything but Court Orders, including Consent Orders, or Binding Financial Agreement.
Can Separated Persons Agree on a Legally Binding Property Settlement?
Yes they can. Again, such agreement could be made legally binding via Consent Orders or a Binding Financial Agreement.
Neither you, nor your ex-partner, nor any lawyer, would actually need to go to Court to obtain Consent Orders or a Binding Financial Agreement.
