Family Law: Property Settlements

Protecting your financial future after separation

Separation is one of life’s most stressful events, and it can have immediate and serious consequences for your financial security, particularly when communication has broken down and trust has been lost. How your property and finances are divided will shape your life for years to come, and it is essential to get the right advice early.

At Millar Trost Legal, our experienced family law team can assist you whether you are newly separated, in the process of separating, or have been separated for some time and are seeking finality. We bring together a wealth of legal knowledge and extensive life experience to provide you with both practical and strategic advice to protect your interests.

How property is divided

In Australia, there is no automatic 50/50 split of assets following separation. The Family Law Act provides a framework that considers a range of factors, including:

The assets, liabilities, and financial resources of each party
Each party’s financial and non-financial contributions to the relationship
Future needs, including income-earning capacity, health, care of children, and other factors
And an overarching consideration for what is just and equitable in all the circumstances

Property settlements can include the family home, investment properties, superannuation, savings, vehicles, business interests, and other assets and liabilities accumulated before, during and after the relationship ended.

It is also important to understand that it often doesn’t matter whose name the property is in, whether it be joint, only in one of the parties’ name or in the name of a trust or company structure, it may all form part of the pool available for division, as the Family Law Courts often have a very wide discretion to declare that a certain property forms part of the pool, including when third parties, such as parents, grandparents or business partners are involved, which makes obtaining advice early about these potential issues all the more important.

Reaching a property settlement

Many property settlements are reached through negotiation or mediation, without the need for court proceedings. Where parties can communicate effectively, we will work to achieve a fair, practical resolution as efficiently and as cost-effectively as possible.

Where agreement cannot be reached, we are experienced in representing clients through the Federal Circuit and Family Court of Australia. Our approach is always focused on protecting your long-term interests while managing the emotional and financial cost of litigation wherever possible.

Formalising your agreement

It is important to note that verbal agreements about property are not legally binding. To properly protect your settlement, it must be formalised through either a Consent Order (approved by the Court) or a Binding Financial Agreement. We will advise you on the most appropriate option for your circumstances.

Time limits

Time limits apply to property settlement applications. For married couples, you have 12 months from the date your divorce is finalised to apply.

For de facto couples, you generally have two years from the date of separation, although exceptions can apply in both married and de facto couples, depending upon your circumstances. Seeking advice early will ensure you do not inadvertently lose your right to make a claim.

Get clear on your next steps