Property Settlement Lawyers Melbourne
The division of property and finances following the breakdown of a marriage is a critical step towards securing your financial future. Prompt, clear legal advice is not just beneficial - it’s vital. At Kelly & McHale Family Lawyers, we understand that while some property settlements appear straightforward, many involve complex financial structures, significant assets, or challenging dynamics. We are here to guide you through every step with expertise and care.
Understanding Property Settlement in Australia
Property settlement is the formal process of dividing the assets, liabilities, and financial resources accumulated during your marriage between you and your former spouse. The law aims to achieve a “just and equitable” division, considering the unique circumstances of your relationship.
It’s important to remember that “property” encompasses a wide range of assets and debts, not just the family home. This can include:
Real estate (the family home, investment properties)
Financial assets (cash in bank accounts, shares, investments)
Superannuation entitlements
Businesses and company interests
Trusts
Vehicles, boats, and caravans
Furniture, artwork, and jewellery
Inheritances or gifts received before, during, or after separation
Liabilities such as mortgages, loans, credit card debts, and tax liabilities.
Full and frank disclosure of all assets and liabilities by both parties is a fundamental requirement of the property settlement process.
Pathways to Resolution: Agreement or Court Intervention
Our primary goal is to help you reach an agreement with your former spouse without the need for protracted and costly court proceedings.
- Reaching an Agreement:
- Consent Orders: If you and your former spouse can agree on how to divide your property, this agreement can be formalised by applying to the Federal Circuit and Family Court of Australia for Consent Orders. Once made, these orders have the same legal force as if a Judge had made them after a trial. This is one of the most common and cost-effective ways to finalise property matters.
- Binding Financial Agreements (BFAs): In some situations, particularly where parties wish to have complete certainty and exclude the future jurisdiction of the Court, a Binding Financial Agreement (BFA) may be more appropriate. BFAs can be entered into before, during, or after a marriage. There are strict legal requirements for BFAs to be binding, including that both parties must have received independent legal advice.
- When Agreement Isn’t Possible: If you cannot reach a fair and reasonable settlement through negotiation or mediation, either party may apply to the Court for financial orders. It doesn’t matter if assets are in one person’s name, held jointly, or within a company or trust structure; the Court has the power to deal with these assets and divide them appropriately.
The Court’s Approach: A Four-Step Process
When determining how to divide property, the Court generally follows a well-established four-step process:
- Identify and Value the Net Asset Pool: The first step is to identify all assets, liabilities, and financial resources of both parties. This involves compiling a comprehensive list and obtaining valuations where necessary (e.g., for real estate, businesses, or superannuation). The total value of the assets less the total liabilities forms the "net asset pool" available for division.
- Assess Contributions: The Court then evaluates the contributions made by each party throughout the marriage and post-separation. Contributions are not limited to financial input and include:
Direct Financial Contributions: Such as income, wages, and inheritances used for the benefit of the relationship.
Indirect Financial Contributions: Such as paying bills that allow the other party to accumulate assets.
Non-Financial Contributions: Such as renovating a home, working in a family business without direct payment, or acting as a homemaker and parent. The role of a homemaker and parent is specifically recognised as a significant contribution.
Initial Contributions: Assets owned by either party at the commencement of the relationship are also considered. The Court typically expresses these contributions as a percentage.
- Consider Future Needs and Resources (Section 75(2) Factors): Next, the Court considers a range of factors relating to the future needs and resources of each party. These are often referred to as "Section 75(2) factors" and include:
Age and state of health of each party.
Income, property, and financial resources of each party.
Capacity for employment and earning potential.
Whether a party has the care or control of a child of the marriage who is under 18 years of age.
Responsibilities of either party to support any other person.
The duration of the marriage and its impact on earning capacity.
The need to protect the role of a parent. An adjustment to the contribution-based percentage may be made based on these factors.
- Determine a Just and Equitable Outcome: Finally, the Court steps back and looks at the overall practical effect of the proposed division. It must be satisfied that the outcome is “just and equitable” (fair) to both parties in all the circumstances of their particular case.
Compulsory Mediation: Conciliation Conference
Before the Court makes a final decision about property division, it requires parties and their lawyers to participate in a property mediation, often called a Conciliation Conference. This is a court-ordered conference conducted by a Judicial Registrar, aimed at helping parties reach an agreement and resolve their dispute without proceeding to a final hearing. Many cases are successfully settled at this stage.
Time Limits for Property Settlement
It is crucial to be aware of the time limits for applying to the Court for property settlement orders:
- If you were married: You must apply within 12 months of your Divorce Order becoming final.
- If you were in a de facto relationship: You must apply within 2 years of the date of separation.
How Kelly & McHale Family Lawyers Can Help You Achieve a Fair Property Settlement
Our experienced family lawyers can provide comprehensive assistance throughout the property settlement process:
- Early, Strategic Advice: We provide clear advice on your likely entitlements and the process involved.
- Identifying and Valuing Assets: We assist in uncovering all relevant assets and liabilities and can engage expert valuers where needed.
- Skilled Negotiation and Mediation: We are experienced negotiators focused on achieving a fair settlement efficiently and amicably.
- Formalising Agreements: We expertly draft Consent Orders or Binding Financial Agreements to ensure your settlement is legally secure.
- Litigation Representation: If court proceedings are unavoidable, we provide robust and strategic representation to protect your interests.
- Complex Matters: We have experience dealing with complex financial structures, businesses, trusts, and international assets.
We are committed to guiding you towards a resolution that allows you to move forward with financial security.
Frequently Asked Questions (FAQs) about Property Settlement
Here are answers to some common questions about property division after separation.
Do we have to go to Court to divide our property?
No, not necessarily. Many couples are able to reach an agreement through negotiation between themselves, with the help of lawyers, or through mediation. If an agreement is reached, it can then be formalised through Consent Orders lodged with the Court, without needing to attend a formal court hearing. Court is usually the last resort if you cannot agree.
To help us advise you: Have you had any discussions with your former spouse about dividing your property yet? What are the main points of agreement or disagreement?
How is superannuation treated in a property settlement?
Superannuation is treated as a type of property and can be divided between spouses. This can be done by a “splitting order”, where a portion of one person’s superannuation is transferred to the other person’s superannuation fund, or by valuing the superannuation and factoring it into the overall division of other assets.
To help us advise you: Do you and your former spouse both have superannuation? Do you know the approximate current value of these funds?
What happens to debts we accumulated during the marriage?
Debts are treated as liabilities and are considered as part of the overall asset pool. This means they are taken into account when dividing property. The responsibility for paying specific debts will form part of the settlement.
To help us advise you: Can you list any significant joint or individual debts (e.g., mortgages, credit cards, personal loans)?
Does it matter who earned more money during the marriage?
While financial contributions are important, the Court also gives significant weight to non-financial contributions, such as caring for children, managing the household, or supporting a spouse’s career. The law recognises that both types of contributions are essential to the accumulation of assets.
To help us advise you: Can you describe the primary financial and non-financial roles each of you played during the relationship?
I brought a house into the marriage. Will my spouse get half?
Assets owned by either party at the start of the marriage (initial contributions) are taken into account. However, the longer the marriage and the more intermingled that asset has become with other matrimonial property, the less weight might be given to it as a sole initial contribution. All contributions throughout the entire relationship are assessed. It’s not a simple formula of who gets what percentage based on one factor alone.
To help us advise you: When was the house acquired, and what was its approximate value at the start of the relationship? Were there any mortgages on it then, and now?
What is a Conciliation Conference?
A Conciliation Conference is a court-ordered settlement conference, usually conducted by a Judicial Registrar. Both parties and their lawyers attend. The aim is to discuss the issues in dispute and try to reach a mutually agreeable settlement with the Registrar’s assistance, thereby avoiding the need for a full trial. It’s a confidential and important step in the court process.
To help us advise you: Has your matter already been listed for any court events?
Protect Your Financial Future
Understanding your rights and obligations regarding property settlement is crucial. Contact Kelly & McHale Family Lawyers today for your free first consultation. We will provide the expert guidance you need to navigate this complex process and achieve a fair and equitable outcome.