Property Settlement


I’ve separated from my spouse, how do we sort out our property?

One of the main areas of family law is property settlements. The law regarding property settlements is the same (in most states and territories) whether you were formally married, in a de facto relationship or in a same sex couple relationship. There is not necessarily an automatic right to have a property settlement. You should check with your lawyer at Bateys Law Firm to see if, in your family’s circumstances, you have an entitlement to a property settlement.

When you have separated and intend to divorce, you can agree on what the division of assets will be between you and your ex. A property settlement can be completed at any time after separation and before you divorce. If you have already been divorced, you should finalise your property settlement within 12 months of the date of divorce. If it has already been 12 months since you were divorced and you haven’t finished your property settlement, contact Bateys Law Firm and we can help you sort out the best way to get your property settlement finalised as quickly as possible.

If you and your ex can agree on the property division; this is formalised by consent orders. For the consent orders to be binding they need to be sealed (approved) by the court. You may need to see a lawyer to ensure that the consent orders meet the formal legal requirements of the court and to ensure that your consent orders are enforceable if necessary. As part of this process, you and your ex partner will also need to provide a full and frank financial disclosure through an application for consent orders. This is a court approved form that is set out in a standard format (as required by the court). At Bateys Law Firm, we are able to help you prepare these documents and obtain your consent orders. In most cases, we can offer you a fixed fee for this work.

What if we can not agree on a property division?
If you can not agree on the property settlement, then you will need to apply to the Court to have the property settlement determined. As part of the process you will also need to provide a full and frank disclosure by way of financial statement. A financial statement is in a standard format required by the court. At Bateys Law Firm, we are able to help you complete your Initiating Application and Financial Statement and prepare your matter for hearing at court.

Do I need to tell the court about my investment property or inheritance?
My former partner does not know about it! Yes. It is vital that you provide a full and frank disclosure of all your assets, liabilities and financial resources including future resources such as an imminent inheritance. There is case law that tells us that the court need not concern itself with fairness in making property orders if a full and frank disclosure is not provided

What percentage will I get?
This will depend on a number of factors including:

  • Are there are minor children of the relationship living with you?
  • Are you able to support the children and yourself?
  • What were your contributions to the assets of the relationship? These contributions may have been monetary or non monetary (such as parenting and homemaking).
  • Is there a valid binding financial agreement (or ‘prenup’)?

It is vital to provide a full and frank disclosure of all assets, liabilities and financial resources that you have available. The Court can penalise people who do not provide a full and frank disclosure by making orders that are unfavourable to them.

To understand the likely split of assets, you will need to discuss your particular circumstances with a lawyer. The court will review the proposed orders to ensure that they are fair and reasonable for all parties, given your particular circumstances.

What are consent orders?
Consent orders are a type of court orders that are made by agreed between you and your ex. You will need to have a lawyer draft the consent orders to ensure that they comply with the legal requirements and that they can be enforced if you require that in the future. It is vital that a full and frank financial disclosure is provided by each party. In approving the consent orders the court will need to ensure that the division of property proposed by you and your spouse is fair and reasonable in the circumstances of your family; taking into account the ability of each of each of you to support yourselves and the children, and the overall effect on each of you of the proposed property settlement. Once consent orders are sealed (approved) by the court they are binding on all parties and it is important that you comply with the orders as there can be penalties for not doing so.

What are court orders?
Court orders are any orders that are determined by the Judge after the court reviews evidence of your particular situation. The court will need to ensure that the division of property is fair and reasonable in the circumstances taking into account the ability of each of you to support yourselves and the children, and the overall effect of the proposed division of property. There are two types of court order – consent orders that are agreed between the parties and do not require any personal attendance at court; and Judge imposed orders that occur after a defended hearing. These orders are imposed on you and you have little to no control over what the orders will be.