Property Settlement Lawyers in the Hills District and Sydney

Property and financial settlements in Australia

Following separation, married and de facto couples may seek orders under the Family Law Act 1975 (Cth) (Act) to alter their existing property interests or declare their property rights. The term given to the alteration of property interests after separation is “property settlement”.

A property settlement may be resolved by agreement through negotiation, mediation or collaborative practice and formalised by consent orders or where appropriate, a binding financial agreement.

Where agreement cannot be reached, either party may apply to the Federal Circuit and Family Court of Australia for property settlement orders.

Arnold Hills are experienced property settlement lawyers. Our aim is to help you protect your financial future and achieve financial separation.

What can be included in a property settlement?

When determining a property settlement, the property interests of both parties must be identified and valued, regardless of whose name an asset is held in. This means that assets held solely in your former partner’s name may still form part of the property considered in the settlement.

Depending on your circumstances, a property settlement may include:

• Real estate property including the family home and investment property;
• Cars, bikes, boats and any other transportation vehicles;
• Money in bank accounts;
• Superannuation;
• Shares and other investments;
• Cryptocurrency and digital assets;
• Valuables (jewellery, collections, antiques etc.);
• Interests in a trust, deceased estate or business venture;
• Companion animals (family pets) and animals that form part of a business, such as livestock.

How does the court determine a property settlement?

The Federal Circuit and Family Court of Australia has broad powers to make orders altering the property interests of separating couples where it is just and equitable to do so.

In Australia, there is no fixed formula for determining how property should be divided and no presumption that each party will receive an equal share. The outcome for each separating couple will depend on their circumstances. When determining what property settlement orders (if any) should be made, the court considers the following matters:

Determine the asset pool

The court identifies the existing legal and equitable rights and interests of each party in property, together with their existing liabilities. This may include real estate, bank accounts, investments, superannuation, interests in companies or trusts, motor vehicles and other property, as well as mortgages, loans and other liabilities. Where the value of an asset cannot be agreed, it may need to be independently valued.

Assess each party’s contribution

The court assesses the contributions made by each party to the relationship. This includes an assessment of the financial contributions made, such as income and any inheritance. Other non-financial contributions are also assessed, such as contributions made as homemaker or parent, and contributions made by a party towards the acquisition or improvement of assets. Where relevant the court also considers the effect of family violence on a party’s ability to make contributions.

Consider each party’s current and future circumstances

The court also considers each party’s current and future circumstances, including their age, health, income, earning capacity and any responsibility for the care and housing of any children of the relationship under 18 years of age. Where relevant, the court may also consider the effect of family violence and any material wastage when determining whether an adjustment should be made in favour of one party.

Consider whether the proposed outcome is just and equitable

The court must also consider the overall effect of the proposed property settlement. The court must ultimately be satisfied that any orders made are just and equitable having regard to all the circumstances.

Options for resolving and formalising your property settlement

There are different ways a property settlement may be resolved and, where agreement is reached, recorded and legally formalised. The most appropriate option will depend on your circumstances. At Arnold Hills, we will work closely with you to determine the option best suited to your circumstances.

Informal agreements

Some separated couples may reach an informal agreement about how their assets and liabilities will be divided without taking steps to legally formalise the arrangement. However, an informal arrangement can leave open the possibility of future financial claims. It is important to obtain legal advice before relying on an informal arrangement.

Consent orders

Where you and your former partner reach agreement, you may apply to the Federal Circuit and Family Court of Australia to have your property settlement formalised by consent orders.

The court must be satisfied that the proposed property orders are just and equitable before making them. Once made, consent orders are legally binding and enforceable and can provide certainty and finality following separation.

Binding Financial Agreements

A Binding Financial Agreement is a private agreement entered into between parties. Strict legal requirements apply to Binding Financial Agreements, and each party must obtain independent legal advice. Whether a Binding Financial Agreement is appropriate will depend on the circumstances and the nature of the proposed settlement.

Court proceedings

Where agreement cannot be reached, or where court intervention is otherwise required, it may be necessary to commence proceedings in the Federal Circuit and Family Court of Australia.

We can advise you throughout the court process and represent you in seeking interim or final property orders, including where there are issues involving urgency or risk to your financial position. In those circumstances, the court will determine how property, liabilities and financial interests should be dealt with pursuant to the Act.

When can a property settlement begin?

You do not have to be divorced to commence a property settlement application. An application can be made any time following separation. However, it’s important to note that the following limitation periods apply under the Act:

• Married couples — an application to the court must be made within 12 months of the divorce being finalised; and
• De facto couples — an application to the court must be made within 2 years of the breakdown of the de facto relationship.

An application outside the relevant time limit may still be possible with the consent of both parties or with leave of the court. Strict requirements apply, so it is important to obtain legal advice promptly if a limitation period has expired or is approaching.

Speak with Arnold Hills, property settlement lawyers in the Hills District and Sydney

At Arnold Hills, we understand that financial uncertainty after separation can be overwhelming. Our priority is to protect your financial interests and help you work towards an outcome that supports your future financial security. Seeking timely legal advice is crucial in navigating your property settlement matter.

Arnold Hills assists clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney, with property and financial settlement matters.

Contact Arnold Hills to arrange a confidential consultation about your property settlement matter.