Property settlements
The Family Law Act 1975 outlines matters relating to property settlements for married couples. If the parties are in a defacto relationship then the relevant State legislation will apply to their separation. In Queensland, parties to a defacto relationship need to apply for an adjustment of their interests under the Property Law Act 1974.
If the parties can reach an agreement
Parties can agree about how their property will be divided following separation. Any agreement would then be formalised in the form of consent orders to be filed in the Family Court or Federal Magistrates Court. Consent orders have the same legal force as an order made by a judge. Parties may also enter into a binding financial agreement.
If the parties are unable to reach an agreement
If the parties are unable to agree about how their property will be divided, then a court application needs to be filed within 12 months of a divorce becoming final.
'Property' is defined by both the Family Law Act 1975 and Property Law Act 1974 and includes all property owned by both parties, prior to and after separation. A court will also consider matrimonial liabilities such as a mortgage or a charge.
The usual approach a court will take in response to a property settlement application is to:
- Ascertain the 'property' of the parties at the time of the hearing, as well as its value. There is an obligation on the parties to disclose all items of 'property' owned by them.
- The court will then assess the entitlement of each of the parties to the 'property'. The court is prohibited from making any order unless it is satisfied that it is just and equitable to do so.
- The court divides the 'property' reflecting the parties entitlements. The court exercises its discretion when determining the actual allocation of property, however there is a general desire to preserve assets as much as possible.
We specialise in property settlements involving multiple parties, the untangling of complex property interests, trusts and corporate structures as well as complicated superannuation concerns. Our Family Law team will ensure that you achieve a most favourable property settlement.
To find out more and for further information about our experience, please contact our Family Law team.