What Is A Property Settlement?

TGB family and divorce lawyer Dina Paspaliaris writes about how assets are split during divorce.

Under the Family Law Act the Court has the power to divide assets and liabilities from a marriage or de facto relationship.

In Australia there is a no-fault system, which means no party will be blamed for the marriage or relationship breakdown.

It you are unable to resolve your matters by negotiations with your former partner, you are able to bring an application for property settlement in the Federal Magistrates Court of Australia.  This must be done within 12 months of divorcing your spouse or within two years of separating from your partner.

Once your matter is in the Court system there is a four step process which the Court adopts.

The first step is to identify and value the assets and liabilities from the marriage.  This will create the net pool of assets up for division between you and your former partner.

The second step is to look at the contributions of the parties before and during the relationship. For example, there may be an inheritance or a lump sum during your relationship which will be recognised by the Court as contribution. The Court also recognises homemaking and parenting as a contribution to a relationship.

Step 3 is to look at the parties’ future needs.  This will include looking at the age and state of health of each of the parties, the parties’ earning capacities, their obligations to care for the children from the relationship and so on.

The Court then looks at whether the division is just and equitable and fair to all parties concerned.

Superannuation is also considered an asset however it is usually dealt with separately.  Your superannuation will need to be valued in accordance with the regulations and the Court has power to make a superannuation splitting order.

A splitting order provides for one party to receive a base amount from the spouse’s superannuation fund.  The base amount is taken directly from the paying party’s existing superannuation entailment.

The first step reaching a property settlement is to obtain professional legal advice about your entitlements.  The next step is to try and negotiate a settlement with your partner.  If you are unable to negotiate a settlement directly with your partner then you may need to issue proceedings.  If an agreement can be reached with your former partner then this needs to be formalised.

Author: Dina Paspaliaris

Contact Dina on (08) 8212 1077.