Property Settlement Lawyers Melbourne

We adopt a diligent and practical approach to assist you during what we understand can be an emotionally charged time.

There is no set process or formula for working out how property, such as a home, bank accounts, a business and superannuation, are divided between you and your former partner after a marriage or relationship breakdown.

However, the Family Law Act 1975 sets out the factors that must be considered. We can guide you through the steps necessary to help you achieve a just & equitable (fair) agreement.

Step 1 – Is it just and equitable to make any order at all?

Determine if it is just & equitable to both parties to make an adjustment to the property that each party owns (and accordingly order a property settlement), or whether they should just keep what they already have.

Step 2 – Determine All Property & Assets

Identify the couple’s existing interests, together and individually, in all assets, liabilities and financial resources and work out the “net asset pool” available to be divided.
If you cannot agree with your former spouse or partner about the value of an asset, an expert may be appointed to value it.

Step 3 – Determine Contributions

Assuming that it is just & fair, make orders for a property settlement, look at the contributions each party made during the relationship and after separation, including:

• Financial contributions made by each party or on behalf of each party. These include contributions made by a party at the start of the relationship. For example, one party may have owned a house at the beginning of the relationship. Particularly relevant contributions include gifts and inheritances.
• Non-financial contributions made by each party or on behalf of each party. These include contributions as a homemaker or parent and home renovations.

Step 4 – Determine Ongoing Needs

Look at each party’s circumstances after separation and each party’s ongoing needs. Many factors can be taken into account at this step, including:

• the age and health of each party
• whether one party has the care of a child or children of the marriage or relationship
• the incomes of each party
• the future employment prospects and earning capacities of each party

These factors can have a significant impact on how property is divided.

Step 5 – Are the orders themselves just and equitable?

The court checks that the outcome is just and equitable, considering all of the circumstances of the particular case. This is a cross-check that the division of property is fair and the court may look here at whether there should be a split of superannuation and the proportions of any superannuation split if not determined earlier.

All assets acquired during and before the marriage must be considered when splitting up property after a separation. This is highly dependent on your specific situation, but these assets may include:

• Real estate properties, such as the family home, holiday homes, rental properties, undeveloped land and land overseas.
• Personal property, such as vehicles, boats, furniture, appliances, jewellery, artwork, and wine collections.
• Bank accounts, including savings and cash investment accounts.
• Superannuation and other retirement funds.
• Shares & stocks, bonds, crypto and any other type of paper investment.
• Business interests, including family trusts, private companies, partnerships and sole traders.
• Inheritances received during the marriage.
• Existing liabilities or debts.

If you are married, you can sort out how your accumulated assets can be divided without first applying for a divorce.

No. All property owned by you and your former partner during the marriage or relationship or acquired before the marriage or relationship, are considered during the property settlement process of a divorce or separation, whether the assets are held collectively in your joint names or under your individual names. Often known as a “matrimonial asset pool” or “net asset pool”, this describes the collection of assets acquired both individually and together during the marriage or relationship.

Assets or property can be divided whether they are owned:

• By both of the parties to the marriage or relationship
• By one of the parties to the marriage or relationship
• By one or both of the parties to the marriage or relationship together with a third party

In certain circumstances, property controlled (but not owned) by one party might also be divided, even if that party is not the legal owner of the property. Examples are assets held in a family trust or assets transferred to a third party.

An expected inheritance is usually not regarded as “property”. It may still be treated as a “financial resource” and considered in a general way in the overall settlement. Entitlements to long service leave may be treated in the same way. Such treatment will change upon receipt of inheritances and leave entitlements.

Yes, there are time limits on when applications for property settlements can be made. We recommend organising your property settlement before applying for divorce or separation to help avoid this.

In most cases, your right to apply for a property settlement is lost after this time limit has elapsed, unless the court specifically grants leave for an application to be issued out of time.

What are the time limits for married couples?

Applications to a court for a property settlement or spousal maintenance must be started within 12 months of a divorce order becoming final.

What are the time limits for de facto (including same-sex couples) relationships?

Applications to a court for a property settlement or maintenance must be started within two years of separation. As there may be a dispute about the date of separation, it is best to start negotiations for a property settlement as soon as possible after separation so that any different views will become apparent.

The length of one’s property settlement case relies on several factors. If very few assets to divide, settlement is generally finalised relatively quickly. For more complex cases, the duration can increase quite significantly.

Priority Property Pool List

The Federal Circuit and Family Court of Australia offers a Priority Property Pools (‘PPP500) list to expedite short-form hearings for property matters where the net value of the property pool is under $500,000.

Major Complex Financial Proceedings

The Federal Circuit and Family Court of Australia has a special list to case manage commercially complex financial family law cases. This list aims to provide strict timetabling, early dispute resolution and intensive specialist case management.

To learn more, visit the Federal Circuit and Family Court of Australia.

Most separated couples agree on how to divide their property without going to court.
A property settlement lawyer can help you negotiate a settlement with your former spouse or partner and advise you on achieving the best possible outcome.

It may not be possible for you to negotiate a fair agreement with your former spouse or partner about the division of property. You might need to apply to the court for a property settlement.
If you agree on how to divide your property, your agreement must be properly documented to avoid future claims against your assets.

There are three options for documenting the agreement about your property settlement:

• Financial agreement consent orders. These can be made without any court appearance.
• Financial agreement and consent orders

We can advise you which option suits your case and prepare the necessary documents.

A Consent Order is a legal document that specifies the terms and conditions agreed upon by both parties in a family law proceeding. It is considered a formal and written agreement that outlines the obligations and responsibilities of each party. To ensure that the Consent Order is legally binding, it must be approved by the Court.

Consent Orders can cover various aspects of family law, including financial matters such as property settlements, spousal maintenance, and child support payments. It’s worth noting that Consent Orders can be changed if both parties agree to the changes and the Court approves them.

Any significant changes may require a new application to be made to the Court. However, in property settlement matters it is usually not possible to make changes after final orders are made.

Most family law disputes about property and maintenance are finalised with consent orders. The other option, if the parties agree, is a financial agreement.

Financial agreements can deal with the following:

• All of the property of the marriage or relationship
• Just one aspect, such as superannuation or inherited property
• Only maintenance
• Property and maintenance

We can advise you whether a financial agreement is appropriate for you.

How do financial agreements work after a divorce or separation?

If you and your former partner agree on dividing your property and/or maintenance after separation, you can use a financial agreement, Consent Orders, or a combination of both. We can advise you which option is best in your particular circumstances.

What are the requirements to make a financial agreement binding?

A financial agreement is binding if:

• It is signed by all parties to the agreement
• Before signing the agreement, each party is provided with independent legal advice
• Each legal practitioner signs a statement confirming that the required legal advice has been given
• The signed statements of independent legal advice are exchanged between the parties
• The agreement has not been terminated or set aside by a court

Can a financial agreement be set aside?

In certain circumstances, a court can set aside a financial agreement. Details of the grounds upon which an application can be set aside are in our Setting Aside Financial Agreements fact sheet.

A prenuptial agreement is a type of financial agreement that sets out how the property of you and your intended spouse is divided if you separate at some time in the future. If it is entered into before marriage is called a prenuptial agreement. A similar agreement is available to couples who intend to enter into a de facto relationship.

It can also deal with rights to maintenance, usually by the parties agreeing that neither party can claim it.

Prenuptial agreements are most useful if one or both parties have:

• Significant assets at the start of the relationship and want to ensure that those assets are protected from any claim in the event of separation
• Business interests they wish to protect from a family law claim
• Received or are likely to receive an inheritance
• Been through an earlier divorce, and want to isolate the assets they received from an earlier property settlement for the benefit of their children from the earlier relationship
• Children from a previous relationship, and want to preserve their assets for those children

A prenuptial agreement must be drafted very carefully as it tries to deal with circumstances that might arise in the future, such as a significant inheritance, the birth of children or a party’s ill health.

Property can be dealt with in several ways in a property settlement order. For example:

• Property can be sold. The proceeds can be divided between the couple or retained by one of them.
• Property interests can be transferred from one party to the other.
• Superannuation can be “split”. See our superannuation page for more information.
• Property can be retained by one party.
• Liabilities can be divided, repaid or retained by one party.

A party can ask a court to set aside a final property order on limited grounds. It is not sufficient that a party is no longer happy with or disagrees with the order. The grounds on which a court can set aside an order are:

• There has been a miscarriage of justice as a result of fraud, duress, suppression of evidence (including failure to disclose information), the giving of false evidence or similar circumstances
• Circumstances have arisen since the order was made which make it impracticable for all or part of the order to be carried out
• Circumstances “of an exceptional nature” have arisen in relation to the care, welfare and development of a child of the marriage or relationship, and as a result, the child or the person caring for the child will suffer hardship if the order is not set aside
• A party has failed to comply with an order, and as a result of the failure to comply it would be just and equitable to set the original order aside and make another order in substitution for it
• A proceeds of crime order has been made against a party or the property of a party.

Even if the court finds that one or more of the above grounds exist, the court may not set aside or vary the orders. The court has the discretion to decide what is appropriate in the circumstances.

How do you consent to set aside an order?

Parties can consent to a final property settlement order being varied or set aside by applying to the court for a new order to be made by consent, which varies or sets aside the previous order.
It is also possible that the court can infer that the parties consent to the order being set aside based on the parties’ conduct. For example, if the parties reconcile after the order is made and act in a way inconsistent with the final order.
A final property settlement order can also be changed if a party successfully appeals the order made by the court.

How do you appeal an order?

An appeal must be lodged within 28 days of the order being made. However, there are only limited grounds on which an order can be appealed. It is insufficient that a party is unhappy with the court’s decision.
A successful ground of appeal might exist if the trial judge made a factual error, made an error of law, failed to give adequate reasons for the decision, was prejudicial or if a party was denied procedural fairness.

A property settlement is often more complicated if one or both of the parties have interests in a business or businesses. The most common area of dispute is the value of a business.

Valuing businesses

The parties’ assets must be identified and valued in determining an appropriate property settlement. A business or an interest in a company may take a lot of work to value.

For example:

• A share in a family company might have limited market value to an independent purchaser, but the “real” value of the interest to the owner may be significant
• A business may have minimal assets, but might generate considerable income
• How is goodwill valued?
• How are company loans treated?
• If parties cannot agree on the value of a business or an interest in a company, an expert is usually engaged to value it. The valuation method used depends on the type of business, and there may be a dispute as to the components of the valuation formula.
• What impact do contingent tax liabilities have on value?

Injunctions

The court has the power to grant an injunction to stop a party dealing with business assets pending a family law dispute resolution. For example, a court can order that a party be restrained from taking action to dispose of business assets outside of the ordinary course of business, pending the resolution of the family law dispute.

The court has the power, subject to various limitations, to make orders that are directly binding on third parties, such as companies or business partners of a party to a marriage or relationship. See our Third Parties and Property Disputes page for more information about orders affecting third parties.

Tax Consequences

The division of property, particularly if businesses, companies and trusts are involved, can have significant taxation consequences. Expert advice is essential to ensure the tax consequences are known and the settlement is structured most tax effective.

We can help to identify the taxation consequences of a proposed settlement and work with your accountants and tax advisers to structure a tax effective property settlement.