Property Settlement
Going through a divorce or de facto relationship separation usually involves a property settlement. The Family Law Act sets out how a couple’s property is divided when a marriage or de facto relationship has broken down. The property settlement process is complicated, but essentially involves the identification and valuation of the relationship property (which is broadly defined) and then a determination of the appropriate “percentage division” between the couple.
The percentages are determined by considering the contributions that have been made by each spouse (including initial, financial and non-financial) and each spouse’s ongoing “future needs”.
As a specialist family law firm in Brisbane, our extensive range of legal services includes divorce and de facto relationship property settlements. If you require advice or assistance, our experienced family lawyers can help.
Property Settlement Process
A property settlement can be done at any time after separation. However, for married couples, time to make an Application to the Court runs out 12 months after a Divorce order is made.
If an Application to the Court for a de facto property settlement is to be made, it must be filed in Court within 2 years after the date the relationship ended.
Determining A Property Settlement Agreement
The Court has the right to say how property is divided when a marriage or de facto relationship has broken up.
The Court takes the following steps to work out how property will be divided:
- The Court takes an inventory of all assets and liabilities that existed at the time of separation;
- A current value is put on the assets and liabilities (this includes superannuation);
- The Court must then work out a percentage division of the property. This is done by considering the financial and non-financial contributions both parties made during the relationship.
When deciding how the assets will be divided the Court also has to consider each party’s ‘future needs’. This includes:
- future obligations;
- financial situation and
- the cost of caring for any children from the relationship.
It is essential that any property settlement agreement is documented and finalised correctly.
Documenting An Agreement
Where parties can reach an agreement in relation to property settlement, there are 2 ways of documenting the agreement under the Act, specifically:-
- By incorporating the agreement in orders which are made by the Family Court with the consent of both parties (Consent Orders); or
- By incorporating the agreement in a Financial Agreement, which deals with property settlement and which does not require the approval of the Court to be binding on both parties.
FAQs
Q. Can I still apply for a property settlement even if everything is in my former partner’s name?
A. Yes. When identifying all relevant property to be considered in a property settlement it is irrelevant whether the property is owned in joint names or owned by one party only. There may also be relevant property owned by trusts, companies, partnerships or other corporate entities.
Q. What if my former partner wants to sell the property but I don’t?
A. If the property is held jointly in your and your spouse’s name, then both of you need to agree to its sale. You can also agree on how else to deal with the property generally. The Court does, however, have the power to order that property be sold if it determines a sale is necessary.
Q. What happens if my partner moves out of the property and stops paying their share of the mortgage?
A. If your spouse is named on the mortgage of a property, then they continue to be liable to pay the mortgage, despite no longer living in the property, until their name is removed from the mortgage. This may be part of the property settlement agreed on between you.
Most separated spouses reach agreement about the continued payment of these expenses until final agreement on severing their financial relationship can be reached.
If your spouse refuses to contribute to these expenses, please seek family law advice from a specialist as soon as possible (you can fill-out this form if you’d like us to contact you).
Q. Are domestic tasks considered a contribution towards property?
A. Yes. In assessing the contributions each party has made to the acquisition, conservation and improvement of the pool of property, the financial, non-financial and family welfare contributions such as homemaker and parent contributions made by each party are considered, as are the timing and significance of those contributions. Each contribution will not be considered in isolation, and must be weighed and considered overall to reach an outcome or agreement.
Q. If my spouse acquires property following our separation, am I entitled to any of it?
A. The relevant pool of property is the property that the parties hold jointly, individually or with another person, or that is held by a trust, company, partnership etc. at the time of the parties reaching agreement or when the Court decides the matter. So, if your spouse acquires property after separation, that property may be included in the pool of property for consideration. However, the contribution of that post-separation property may be viewed as a contribution solely by them, and an adjustment may be made in their favour in the overall property settlement between you.
You can learn more about divorce and de facto relationship property settlements by reading our booklet The Guide To Family Law.
We hope this information is helpful. For specialist property settlement advice from a family law solicitor, contact Michael Lynch Family Lawyers by phoning (07) 3221 4300. We offer fixed-cost no-obligation initial appointments with our family lawyers to help you understand the options available to you. We can meet with you in person at our Brisbane City office or discuss your situation with you over the phone or video call.
Client Testimonials
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
Your newsletters are great, I appreciate them.
You, guys, provide extraordinary service.
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
Michael is very personable and very good at covering the material and explaining the strategy.
My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.
I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.
So pleased to have had a good, sound and knowledgeable firm.
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.
Many thanks for your assistance – life is now great – I’m moving on.
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
My solicitor is a good listener. My documentation maintained the high moral ground.
My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.
We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
Michael Lynch Family Lawyers know what they are talking about.
I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.
Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.
I was always confident that I was getting the very best advice.
Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.
Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.
Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
I liked my solicitor keeping things as simple as possible.
Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!
I appreciate my lawyer’s professional approach and her being on top of my situation.
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
Your team’s communication with me was exceptional, I knew exactly what was happening.
Michael Lynch Family Lawyers are easy to deal with, and your systems are good.
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
I like your friendly service and the ability to speak to my solicitor directly.
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
I would like to thank your firm for the support and compassion shown while dealing with my matter.
At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!
Your team is professional, warm, friendly and real.
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
Your staff is knowledgeable, professional and very calm.
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.
I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
I really appreciated the happiness of your secretarial staff.
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
subscribe to our
FAMILY FLYER
The Family Flyer is a monthly e-mail newsletter. It contains a mix of short topical articles to keep you up-to-date with family law issues.Subscribe now and receive a FREE copy of A Guide To Family Law by Family Law Specialist, Michael Lynch containing information valued at over $500.