Navigating property settlement can be confusing, so we’ve compiled answers to some of the most frequently asked questions to help you better understand the process.

What is property settlement?

When a marriage or de facto relationship ends, it’s essential to ensure a legal and equitable division of all financial assets and obligations. This process involves carefully assessing and dividing not only shared property and income but also any other financial interests and responsibilities that may have been accumulated during the relationship.

When should you start the process?

Every divorce is unique, and timelines can vary accordingly. However, it's advisable to initiate the property settlement process promptly following your separation. After the divorce is finalised, you typically have twelve months to settle your property matters, emphasising the importance of early action. If you are not married, you have 2 years from the date of separation to settle your property matters. Consulting with legal professionals early on will provide clarity on your specific timeline and guide you through the complexities involved in property settlement. Starting early ensures you have ample time to make informed decisions and achieve a smooth resolution.

Can you negotiate a property settlement?

Negotiating a property settlement can be beneficial when you seek a mutually agreeable resolution that feels just and fair. Mediation offers an effective method for resolving disputes by involving a neutral third party who facilitates open and productive discussions. This process enables both parties to express their needs and concerns respectfully, fostering the creation of a fair agreement that satisfies everyone involved.

What is considered when assets are being divided?

When dividing assets during a separation, it’s important to consider more than just salaries; this includes gifts, inheritances, and investments that impact the overall financial picture. Superannuation, a significant asset in Australian separations, can only be divided through a court order or binding financial agreement and requires expert valuation due to its trust-held nature. The family home is often the most valuable asset, with its division based on financial need, particularly if children are involved. Other real estate, business values, and personal items like furniture, art, and jewellery are also considered, with negotiation or mediation typically used to divide them. If an agreement can’t be reached, a judge may make the final decision.

What is a consent order?

A consent order is made by the court and shows the agreement that both parties have made about how to divide their property. However, the court must first agree that the division is appropriate, just, and equitable before making any others. So, even if you’ve arrived at a mutual agreement, the court still has the final say.

Do you have to ‘go to court’ for property settlement?

In most cases, there is no need to go to court. Only a small percentage of cases require court involvement. An effective family lawyer should work hard to keep your matter out of court. Of course, sometimes avoiding court is not possible, such as when negotiations are not progressing, one party is hiding or selling off assets or there is an urgent matter that requires the court’s attention.  

What if one party doesn’t agree to a property settlement?

Not all separations happen amicably, so it’s common that one party wants to go a different route. When this is the case, a family lawyer can present them with some other solutions towards resolution. Mediation can also be a great way to help resolve matters that simply cannot be achieved without some outside intervention. However, if one party continues to refuse, then going to court might proceed. As court is expensive and timely, it’s best to avoid this as much as possible.

Is property settlement possible for de facto relationships?

Under the Family Law Act, de facto couples can apply for property settlement in much the same way as married couples. To be eligible, the relationship must meet certain criteria, such as having lasted for a sufficient period, having a child together, or where one party has made substantial contributions to the relationship and not obtaining a settlement would result in serious injustice.

Advice and guidance through property settlement

Dividing assets between separating couples can be tricky, particularly when complex financial structures are in place. At Eliza Legal, we can provide you with advice regarding your property settlement. Eliza Legal is a leading family law firm based on the Mornington Peninsula, dedicated to providing tailored legal services with compassion and integrity. Contact us today and let’s see if we’re a good fit! We’d love to help you.