When a marriage or de facto relationship ends, both parties are entitled to make a claim for property of the relationship. This means that either party can apply to have the assets divided between them.

For some couples, when their relationship ends, they are able to divide their assets easily or they may have made an agreement earlier in their relationship. For many people however, figuring out who gets what at the end of the relationship can be hotly contested.

Property and assets encompass a wide range of things, some of which you may not realise are considered property. Such lack of understanding may lead to an unfair property settlement. It’s important to understand what you’re entitled to, which is where we come in.

If you have been married or in a de facto relationship which meets certain criteria, then you are entitled to make a claim for property upon the breakdown of your relationship.

Not necessarily but they can be. Property settlements are different for each relationship as every situation is entirely unique. For some former couples, dividing the asset pool 50 50 may work for them, however, as the division of assets is often based on, inter alia, contributions and future needs of each party, it’s rare that the split will be an equal 50 50 split.

The unique factors of your situation will determine how much you get from a property settlement. There is no set amount or division split. Instead your contributions and future needs play a large role in how a property settlement is decided.

The property settlement process is different in every situation and there is no set formula, however there is a 5-step process that is commonly used as a guiding framework and includes the following steps:

Step 1:    Determine whether or not it is just and equitable to adjust the parties’ interests in property held by either party to the relationship.

Step 2:    Identify and value all property held by either party to the relationship, irrespective of where it came from or when it was acquired.

Step 3:    Consider the direct and indirect, financial and non-financial contributions made by and on behalf of each of you, including contributions in the role of the homemaker. At this stage, a percentage apportionment reflecting those contributions is usually made (for example 50% / 50% for equal contributions by both parties).

Step 4:    To consider, among other things:

1. the age and state of health of each of you;
2. the income, property and financial resources of each of you;
3. the physical and mental capacity of each of you for appropriate gainful employment;
4. the disparity in the income earning capacities of each of you;
5. any instances of family and/or domestic violence; and
6. any commitments that are necessary for each of you to support yourself or any other person,
   and to decide if these factors mean the apportionment in Step 3 above should be varied (for example, if one party has a lower earning capacity than the other, the step-3 percentage may be adjusted by a certain percentage in the lower income earner’s favour);

Step 5:    Consider whether the specific order the Court proposes to make to implement the percentage division decided upon is “just and equitable” in all the circumstances of the particular case and make any necessary adjustments.

Yes. If a couple was married, they have 12 months from the date the divorce is finalised to make a claim for property. If the couple was in a de facto relationship, they have 24 months (2 years) from the date of separation to make a claim for property.  Exceptions do apply, but this is a complex area of law which must be handled by an experienced family lawyers.

In Australia, the property that can be subject to division in a property settlement includes all assets and liabilities acquired by either or both parties during the course of the relationship. This can include:

Real Estate: This includes the family home, investment properties, vacant land, and any other real estate owned by either or both parties.

Financial Assets: Bank accounts, savings, investments, shares, stocks, bonds, and any other financial assets held individually or jointly.

Personal Property: Motor vehicles, jewellery, furniture, appliances, artwork, and other personal belongings.

Superannuation: Superannuation or retirement funds accumulated by either or both parties during the relationship can be subject to division. However, there are specific rules and procedures for splitting superannuation, and it may not always be divided in a 50/50 manner.

Business Interests: If either party owns or has an interest in a business, such as a partnership, company, or trust, it may be included as part of the property pool.

Debts and Liabilities: Debts, loans, mortgages, credit card debts, and any other financial obligations incurred during the relationship are also considered during property settlement.

It’s worth noting that property settlement is not limited to assets acquired during the marriage or de facto relationship but can also extend to assets owned before and brought into the relationship, inheritances, gifts, or windfalls received during the relationship, and future interests or potential assets.

If you and your former partner are unable to reach an agreement on how your assets should be divided, and all other resolution methods, such as negotiation and mediation, have failed, you may need to go to Court for Property settlement orders.

As your family lawyer, we will work with you to aim for a fair and just settlement, and we can help with negotiation processes, mediation, legal representation and provide you sound legal advice.

The benefit an experienced family lawyer brings to contested family law property settlement proceedings is immeasurable.

Mistakes, including seemingly innocuous non-compliance with Court Rules, short-sighted tactics or glossing over important factors, can severely damage a litigant’s case.

Where this occurs in family law property settlement proceedings, there is invariably significant financial consequences.  Such consequences can not only include an unpalatable division of the property pool, but also Orders requiring payment of the opponent’s legal fees.  As such, wise litigants consistently engage experienced family lawyers to ensure their needs are met.

If you’re involved in a contested property settlement in the Townsville and Mt Isa region of Australia, don’t leave it to chance, work with us today.

Our family law firm is based in Townsville, Queensland, and while we work with many people in the local area and surrounding region, including in Mt Isa, all of our family law services, including those related to property settlement proceedings, are available to people Australia-wide.

Get in touch with us by calling us on 07 4426 1980 or booking a free consultation here.