Category: Assets and Debts

A prenuptial agreement is a binding financial agreement between two individuals that records their assets, liabilities and financial resources prior to marriage. The agreement states how these assets will be divided between the two parties in the event of a divorce.

Suggesting a prenup can be an awkward conversation with your partner, but creating a prenuptial agreement ensures the assets and resources you have worked hard for are protected if you divorce, and ensures your future self and those dependent on you are provided for and protected.

For a prenup to be legally enforceable, certain strict criteria must be met. These include:

  • The agreement must be signed by both parties in the presence of a suitable witness, usually the parties’ legal representative;
  • Both parties must have independent legal advice prior to entering into the agreement. Parties cannot share a lawyer or get advice from the same lawyer under any circumstance;
  • Those providing independent legal advice must sign a declaration that they have done so;
  • The parties must have entered into the agreement without duress, coercion or undue influence;
  • The agreement should detail a complete disclosure of both parties’ financial positions; and
  • The agreement must be fair for both parties.

If any of these circumstances exist, the prenuptial agreement can be challenged in the Family Court and rendered unenforceable.

You can only challenge or change your prenuptial agreement if you prove one of the following:

  • The prenuptial agreement was signed under fraudulent circumstances;
  • The prenuptial agreement isn’t practical or convenient to fulfil; or
  • One party was unfair or unethical when creating the prenuptial agreement.

It is important to sign your prenup well ahead of your wedding ceremony. This will reduce the chance of the court finding one party to have entered the agreement under duress, coercion or undue influence. Signing the agreement as far away from your wedding ceremony as possible is best (recommended no less than 60 days before the ceremony). By signing early, both parties also have more time to consider the details of the prenup before getting married.

If you are considering whether or not to create a prenuptial agreement, No Lawyers’ Family Law Resources can give you the confidence to make decisions that are right for you.

 

Family violence issues can commonly arise in family law matters, in particular cases that go through the Family Court.

People generally understand that family violence can impact parenting matters, but are often unsure of the impact it can have on property settlement. This article will help you understand the ways in which family violence can affect your property settlement.

Court proceedings that involve family violence related to property matters are often more complex than those involving parenting issues. This is because family violence can have considerable impact on parenting matters to safeguard the interests of children and other parties, however rarely are property entitlements adjusted due to arguments relating to family violence.

When dealing with matters where family violence has an impact on property settlements, the court looks to the precedent of Kennon and Kennon (1997). In this case, the wife claimed her husband had physically assaulted her throughout their relationship which entitled her to a larger amount of their assets. Therefore, the court will consider evidence of family violence when allocating assets, likely working in favour of the impacted party.

As a result of Kennon and Kennon (1997), three elements emerged that the court will consider when assessing a case:

  1. A violent course of conduct occurred during the marriage or relationship;
  2. Proof exists of an impact on the individual’s ability to make contributions to the marriage or relationship; and
  3. The argument and the resulting effect of the argument on entitlements will only apply in ‘exceptional circumstances’ to a ‘narrow band of cases’.

While Kennon and Kennon (1997) shone light on the issue of family violence in property cases, it did not adequately outline what would be considered proof of an impact on an individual’s ability to make contributions to the marriage or relationship, or what would be considered a violent course of conduct.

If you are struggling with family violence, No Lawyers’ Family Law Resources can help you make well informed decisions moving forward.

  1. Be Settlement Aware
    As the name suggests, Property Settlement is all about settling, rather than getting your way. If you would like to make it through this process without a lengthy and costly involvement of the Court, you have to be prepared to make some concessions in order to arrive at an outcome.
  2. Establish the Property Pool
    In order to work out a fair and equitable division of property after a divorce or separation, you must establish a detailed property pool – which includes all valuable assets (including property, vehicles, , superannuation, art, bonds and savings) owned at the time of settlement. The No Lawyers platform will assist you in adding all of your assets, debts and superannuation accounts.
  3. Consider Your Contributions
    During the course of a relationship both parties contribute to their joint wealth and these contributions are taken into consideration during property settlement. There are financial contributions (i.e. income or pre-existent assets) and non-financial contributions (i.e. renovations increasing property values or parenting contributions allowing the other party to work/earn more).
  4. Estimate Your Future Needs
    Post-divorce/separation each party is likely to have different needs. Depending on parenting agreements, professional status, age, health and financial situation, the Court will decide who gets what based on their specific needs. As a rule, it will be a matter of equity over equality in order to ensure a reasonably comfortable situation for both parties.
  5. Get Court Approval
    Once both parties have worked out what they consider to be a fair division of property, you must submit all the data you’ve gathered to the Court with your Consent Order Application, which is easily created using No Lawyers. The Court will assess it in terms of justice, equity and compliance with Family Law, before returning it to you as a Sealed Consent Order, which is a legally binding document.


And don’t forget these deadlines

Matrimonial Property Settlements must be submitted within 12 months of the Divorce Order.

De Facto Property Settlements must be submitted within two years of the date of formal separation. 

 

Separation and divorce will introduce you to a whole new world of rules and regulations – there are laws dealing with the separation of property and assets, and stringent guidelines to follow when working out custody agreements.

While this can be overwhelming at first, it is also genuinely helpful – because in a stressful and emotional time like this, it can be quite comforting to know that at the very least there are rules to follow and forms to fill in to make sure the settlement is as fair as possible.

In regards to possessions and shared children, the law is reasonably straightforward; but what about shared pets? How do you determine who gets to keep the dog, the cat, the snakes…any pet acquired during the relationship?

If you can, work it out privately.

Even though you might love your pet as you would love a child, all pets are classified as property when it comes to the law.

Regular family pets – cats, dogs, guinea pigs etc – are not considered valuable assets and the courts will generally frown up any disputes concerning such pets. There are exceptions, of course. If an animal has a genuine monetary value, like a race horse or a pedigree dog sought after by breeders, the courts will take this into consideration and include such an animal in the property settlement. The same goes for animals that generate a substantial income, such as cattle.

As a general rule, the courts encourage separating partners to work out care arrangements for their pets without getting lawyers involved; so it might be worth having a sit down (or at the very least a civil phone conversation) and try to find a solution.

If you can’t – here are your options:

If you absolutely cannot agree on who will keep the dog – and are unwilling or unable to share doggy custody – you can get the courts involved. Remember, this is not a matter of custody, it’s a matter of property settlement.

If you apply for a property settlement, you are going to have to participate in Family Dispute Resolution (FDR); it’s basically mediation that will hopefully lead to the matter being settled out of court.

However, if there is simply no working it out, the matter will go to family court as part of your property settlement, where some of these points may be considered:

  • Who paid for the pet?
  • Is the pet registered in one party’s name?
  • Was one party the main caregiver of the pet?
  • Who has the accommodation best suited for the pet?

If your pet becomes part of the property settlement process, it is up to the court what happens next – that means the court can theoretically order the pet to be sold so you can split the proceeds, the same way it might with a house or a car.

If you have shared human children, the court might decide that the pet should stay with the children, meaning that it will travel with them between the parents’ houses depending on custody arrangement; or alternatively order the dog to stay with the parent who sees the children less to decrease their stress and solitude.

Keep in mind, once the court has signed orders, it is very hard to appeal the decision, so it’s often in everyone’s best interests to settle pet matters privately.

 

Considering the legalities of your relationship can feel a little weird and clinical; after all, it’s all about love, right? That said, there are moments in every long-term relationship when you need to be aware of your legal rights and obligations – be it for tax purposes, health reasons or during a break-up situation. The legal recognition of same-sex relationships has evolved rapidly during the last decade, so it’s fair enough if you are feeling a little confused regarding your rights.

However, it’s actually not as complicated as it might seem. Here’s what you need to know:

Same-Sex Relationships are fully legally recognised.
Same-sex marriage has been legal in Australia since December 2017; however, even if you are not married to your partner, your relationship has the same legal validity as any other de facto relationship. You can make your de facto relationship extra official by registering a civil union or domestic partnership, if you choose. In any case, you have the same legal rights and obligations as heterosexual couples.

Rights and Obligations While You’re in a Relationship
Since 2008, the Australian government no longer discriminates against same-sex couples and their children when it comes to everyday legalities. That means if you are living together, sharing expenses and familial responsibilities (i.e. shared children, pets, mortgage etc.), your relationship is subject to the same laws as any other de facto relationship or marriage. That means:

  • you have to report to social services as a couple (i.e. disclose your partner/wife’s income when applying for any government assistance)
  • you are entitled to include your partner/wife in your will and as a beneficiary of your superannuation
  • both of you will appear on your child/children’s birth certificate, registered as “mother” and “parent”, if they were conceived through invitro fertilisation
  • you can grant your partner/wife power of attorney regarding your affairs and vice versa
  • you can grant your partner/wife statutory health authority and vice versa
  • you have equal parental responsibility
  • you can sponsor your partner/wife in case of immigration and vice versa
  • you are able to adopt and/or foster children

Rights and Obligations in case of Separation or Divorce
If you are in a same-sex marriage, you have the exact same rights and responsibilities when going through a divorce as any other married couple. You will have to go through the process of property division and, if you have children, make custody arrangements suitable to your respective situations.
It used to be a different story for de facto relationships; however, since 2009 de facto couples separating may apply for a property settlement provided:

  • they have been living together for two years or more
  • one partner has contributed significantly to the joint property (financial or otherwise)
  • you have shared children

In case of separation/divorce you and your partner/wife will both still have parental rights and responsibilities, provided you both appear on the child/children’s birth certificate.

If domestic violence has occurred during your relationship/marriage, you can apply for domestic violence orders and are entitled to protection and legal representation.

 

 

It’s understandable to feel confused by all the technicalities and terminology used in the legal space, especially if your mind is already preoccupied with your separation or divorce.

Usually, two terms many people use interchangeably are ‘property settlement’ and ‘divorce’.

Their meanings get confused because both processes involved negotiating with your former partner and seeking professional guidance from a lawyer. However, there are important differences.

To help you, let’s briefly discuss the difference between divorce and property settlement.

What is property settlement?

Property settlement refers to the division of assets and debts between parties and is usually negotiated shortly after a separation, as there are time limits imposed.

For instance, you and your partner decide to get a divorce or undergo legal separation. Either the two of you or the Court will then work on splitting your combined net assets through a property settlement process.

Married couples can apply to the Court for property settlement for up to a year after an official divorce has become final, while de facto couples can do so for up to 2 years from the date of separation.

What is a divorce, then?

A divorce is a legally recognised Order made by the Court that you are no longer married. However, a legal divorce does not deal with the division of your assets or parenting arrangements.

Keep in mind, too, that the Court isn’t concerned with whether any party may be at fault for the marriage breaking down.

To obtain a divorce, what you need to show is that you have been separated from your spouse for 12 months and 1 day and that your marriage has broken down irretrievably with no prospects of reconciling.

You can also obtain a divorce if you and your partner have separated but been living under the same roof for this time too.

How to apply for divorce in Australia

In order to apply for divorce in Australia, either you or your spouse must meet one of the following criteria:

  • Born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia)
  • An Australian citizen by grant of Australian citizenship (If so, you will need your citizenship certificate when filing your application)
  • Lawfully present in Australia and intend to continue living in Australia. (You must have been living in Australia for at least the last 12 months. In some cases, you may need to present your passport showing the date of arrival at least one year prior and/or a valid or current visa)

Have you been searching for answers regarding the “divorce property settlement time limit” or the “de facto property settlement time limit” or the “spousal maintenance time limit”?

It’s quite a common question during a separation or a divorce.

One of the most important things you must manage when undergoing a divorce or legal separation is the property settlement process. To make sure you avoid any further difficulties, it’s important to know and abide by the time limit.

You don’t want to miss having claims on your assets just because you missed the deadline required.

So, to help, here are some key points you should remember about time limits for property settlement and spousal maintenance.

What is the property settlement and spousal maintenance time limit after a divorce or separation?

If you are married, the time limit is one year after your divorce becomes final. On the other hand, if you are in a de facto relationship, the time limit is two years from the date of separation.

The property settlement process can begin any time after separation. Commencing property settlement negotiations soon after you and your partner or spouse have separated can help you finalise things without having to go to Court. It can enable each of you to work out if you can afford to adequately support yourself, now living separately, or whether you need any financial support from your former partner or spouse (spousal maintenance).  It also allows property settlement proceedings to begin before the time limit ends, should you not be able to reach an agreement and opt to file for a Court application.

Handling your property settlement matters as early as possible will lessen the risk of the negotiations taking longer than you expect.

Keep in mind that when the time limit passes, you can lose your rights to seek a property settlement or payment of spousal maintenance – so it’s best to act sooner than later.

What if the time limit has already passed?

Once the time limit passes and you have not yet filed proceedings for property settlement and/or spousal maintenance, then you need to ask permission from the Court.

This pertains to the process of obtaining “the Leave of the Court” to proceed with Property Settlement or Spousal Maintenance out of the allowed time frames. Leave is usually only granted in exceptional circumstances and there are strict requirements that must be met. It’s best, then, to consult a lawyer to ensure you follow the right guidelines.

What are the grounds for obtaining leave to proceed for property settlement after the time period?

For the Court to grant you with Leave to proceed out of time for a Property Settlement or claim for Spousal Maintenance, you need to satisfy the following:

  • Hardship would be caused to you or a child of the relationship if leave is not granted.
  • You have a real probability of being successful in your property settlement claim.
  • Concerning claims for maintenance, at the end of the period before the time limit expired, your circumstances would have made you unable to support yourself without an income-tested pension, allowance or benefit.

When making decisions regarding granting leave to proceed out of time, the Judge will also examine these factors:

  • Length of the delay outside the limitation period
  • Reasons for the delay
  • Strength of the merits of your case
  • History of the proceedings
  • Conduct of the parties
  • Any likely prejudice and consequences to be caused to the other party or third parties if leave were to now be granted
  • Degree of hardship likely to be suffered if leave is not granted
  • Weighing up the court proceedings being allowed to proceed against the capacity of the parties to proceed with their post-separation lives free of prospective litigation

The Judge will, then, greatly consider whether granting leave will do justice or not between you and the other party. As such, it’s important to note that the onus of proof or the obligation to prove the case lies on you – the applicant party seeking to proceed out of time.

To learn more, here are examples of related legal cases.

Case 1

In Hertwig & Hertwig [2018], leave was sought by the husband to commence property settlement proceedings around four months after the limitation period. The husband had attempted to begin proceedings about two days before the limitation date expired, but encountered difficulties when filing the documents.

The husband cited it was because the wife had diverted a property (a significant asset) to a Trust entity controlled by her parents, whereas before separation, the property had been financially supporting both of them and their children.

What was the judge’s decision?

The Judge considered that if leave was not granted, the husband would lose the opportunity to seek orders in relation to the property.

Recognising the various contributions the husband made during their relationship, the Judge came to the conclusion that the wife had taken the benefit of a significant asset which financially supported both parties and their children before separation – especially because this property was the only asset in the couples’ property pool.

In this case, the parties were still to resolve parenting matters. However, the Judge granted leave for the husband to institute proceedings for a claim for property settlement.

Case 2

In Edmunds & Edmunds [2017], neither party commenced proceedings within the limitation period. The wife, then, sought leave to proceed with a property settlement application 6 years and 9 months after the time limit had expired.

The parties were married for 17 years and had 3 children, with the youngest being 17 at the time the application was made by the wife. When the parties commenced living together, the husband had an interest in 2 properties with his first wife and the wife had little assets of value. During the relationship, the wife’s parents gifted the parties $25,000 which was used towards the purchase of a property that was renovated and later sold. When the parties separated, they owned 2 properties in joint names and had superannuation. The total net value of the asset pool was around $552,000.

By the time the wife’s application for leave was before the Court, the husband’s asset position had become significantly greater than it was at the time of separation. The wife contended there was an informal agreement as to property settlement, but the husband denied this and said there was nothing formally documented.

What is the judge’s decision?

In this case, the Judge considered the following factors:

  • the financial and non-financial contributions of the parties
  • all of the evidence given by the parties
  • the likely percentage division if a Court was to determine a property settlement claim, in comparison to the value of the assets already retained in each party’s name
  • the likely costs to be incurred by each party if leave was granted and property settlement proceedings pursued
  • the significant prejudice to the husband in responding to the wife’s claim for property settlement, including the passage of time on the availability of documents and witnesses and his recollection of relevant matters from 25 years prior
  • the length of the delay, as the limitation period had expired 6 times over
  • the wife’s failure to take any action despite being aware of the time limit and her inadequate explanation for the delay
  • the wife’s actions after separation not raising a reasonable expectation she would later make a claim for property settlement

Taking all of these into account, the Judge refused to grant leave for the wife to proceed with a claim for property settlement on the basis that hardship had not been proved.

Consequently, the parties were left to reach an agreement or seek orders through State-based laws for the properties to be sold – meaning the proceeds would be divided equally as the properties were held in joint names.

If in doubt, always seek legal advice about your property settlement and spousal maintenance rights and entitlements.

Contact a lawyer from our panel of trusted partners to get the advice you need.

If you’re involved in a separation or divorce, the couple often pools their assets to be divided between the both of you.

While assets like a car or a house are simpler, your Superannuation may not be as obvious to determine or calculate. That’s because your Superannuation is an accumulated fund as a part of your salary and wage earnings over time to provide an income stream when you retire. It’s generally inaccessible until you reach 65 years of age.

So, is superannuation classed as an asset in a separation?

In nearly all circumstances, your superannuation is considered an asset which forms part of the property pool and can be divided between the separating parties.

When you separate and you begin to calculate your total assets, you have an obligation to disclose all of your superannuation funds.

How to obtain my superannuation balance

You can obtain the details and valuation information about your superannuation, or your spouse/partner’s superannuation by completing a Form 6 Superannuation Information Request and writing to the superannuation fund.

They will supply the information and amounts you need for your separation.

In some cases, the superannuation fund may not be able to provide you with a value of the fund but will instead provide the information you need to have the fund valued for the separation asset pool.

For example, many defined benefit funds such as those held with the Defence Force, Military Super or Commonwealth Superannuation Scheme (CSS) do not provide you with a valuation. However, the information they do provide will allow you to have the superannuation valued by a specialist Superannuation Valuer – this is a separate service.

However, in most cases, simply submit the Form 6 Superannuation Information Request form above.

When is superannuation not considered an asset?

There are some limited circumstances when your superannuation may be considered a financial resource, not an asset. However, in most circumstances, your superannuation interest will be considered an asset.

How do you determine what your superannuation should be?

If you are unsure if your superannuation interest should be considered an asset or a financial resource for your separation, you should seek legal advice.

Divorce or any legal separation between you and your partner is more than just parting ways. It also involves the process of calculating a fair distribution of assets and determining the responsibilities required for the children.

Property settlement is a part of the distribution of assets in a separation or divorce.

What is a property settlement?

As the name implies, property settlement is the decision around how to divide  the assets and allocate the debts between you and your partner.

Property settlement can be an especially exhausting issue involving many factors. However, you can reduce or prevent conflict by following these tips:

Identify all the property you can divide

When we refer to “property”, it’s not limited to real estate. In fact, property settlement involves all assets owned by both parties (or in which they have an interest) including bank accounts, motor vehicles, boats, aircraft, shares, superannuation, pensions, contents, chattels, collectables, loans that are owed, life insurance policies, brokerage accounts and any other items that may be considered of value.

To guarantee that you’ll receive fair value when you divide any property,  you may need to seek the help of a registered valuer.

Settle all issues involving dual signatures on your bank accounts

You wouldn’t want your partner to withdraw large sums of money from your joint bank account without your knowledge, particularly if this person may hide funds for their sole benefit. So, take the initiative to contact your bank or financial institution to ensure all access to your joint accounts will require both signatures – both you and your partner.

Conversely, if you are being supported financially by your partner and you do not have an income stream or other cash available to you, you may wish to consider withdrawing money from the joint bank accounts before your partner potentially arranges dual signatures to be placed on them.

Take note that you will still be accountable for this money. Withdrawing it earlier will just help you meet your immediate living costs in the event of separation. If you’re in this kind of situation, it’s best to seek help from a lawyer to find out if you could obtain spousal maintenance from your partner (which is money paid to you to meet your usual and everyday living expenses).

Arrange necessary credit limits

To prevent your partner from using money without your consent, talk to your financial institutions to cancel redraw facilities from your loan accounts.  You may also wish to cancel your partner’s secondary cardholder access to credit card accounts that are in your sole name or reduce the credit card limit.

On the other hand, as with joint bank accounts, if you are being supported by your partner with no other income or cash available to you, you may consider redrawing money available from loan accounts to meet your everyday living costs before your partner cancels the redraw facility or reduces credit limits.

However, just like above, you are still accountable for this money. Withdrawing it earlier will just help you meet your immediate living costs in the event of separation.

Copy financial documents and records

Save your own copies of important files, so you’ll get a reliable perspective of your property settlement entitlements.

Some documents and reports that are important when preparing for a property settlement include:

  • bank statements
  • credit card statements
  • loan documents
  • superannuation statements
  • valuations
  • tax returns and notices of assessments
  • employment contracts
  • payslips
  • contracts and settlement statements for the purchase and sale of assets
  • any documents referring to the value of assets or debts held by each of you at the commencement of your relationship
  • documents relating to any inheritances, payouts or gifts received by either of you during the relationship
  • other financial records you may be able to locate relating to assets, liabilities, income or financial contributions made by either you or your partner

Nevertheless, if you are unable to obtain this information, you can get legal help for other possible methods of disclosure. Your lawyer can assist you by conducting searches through various online systems or issuing subpoenas.

Secure valuables, cash and sentimental items

If you are concerned about your partner removing cash, valuables or sentimental items from your marital home without your permission, you should ensure these things are placed somewhere safe. It’s also essential to secure those items you know may be sought after by both parties, so you can be certain of their whereabouts in the future.

Change the locks

Once you’ve officially separated, you can now decide to prohibit your partner from entering your property without your knowledge. For your own peace and safety, you can even change the locks.

However, this depends if it’s a joint property or not. If you’re not sure, seek legal advice as they’re technically entitled to enter if they’re a co-owner.

Handle caveats, injunctions (restraining orders) and undertakings wisely

Whether assets are in joint names, either parties’ sole name (or your partner’s name with someone else) or the name of an entity operated or controlled by your partner, property settlement arrangements take into account all assets, regardless of who is the named  owner.

So, in instances where you made indirect, financial or non-financial contributions towards an asset, know that you have an equitable interest in it even though you may not be a registered owner.  This means you may be able to register a caveat against real property (real estate – land, houses, units) to ensure your partner will not be able to sell, transfer, encumber or otherwise deal with the property contrary to your interests.

Similarly, you may wish to consider obtaining an injunction or restraining order and/or suitable undertaking to prevent your partner from disposing or dealing with marital assets that you have an interest in (regardless of whether these assets are in your name).

For any property settlement agreement, always remember to seek formal legal advice before taking this type of action. You wouldn’t want to be liable for damages just because your actions lack reasonable grounds.

Update your Will and Enduring Power of Attorney

If you don’t get your Will and Enduring Power of Attorney updated, your assets may pass to your partner or spouse upon your death or they may still be able to act as your attorney – regardless of your separation.

Because of this, even before your divorce is formally granted, it’s best to ask advice from a lawyer who handles Wills and Estate matters. This will ensure your Will and Enduring Power of Attorney is up to date and legally binding.

If in doubt, always seek legal advice about property settlement.

When you’re separated or divorced, there may come a point where you need to work out a property settlement between you both.

Property settlement works by dividing a couple’s combined net assets, but it’s not as simple as it seems.

To ensure that all of your assets are divided and debts allocated fairly with your former partner or spouse, the Family Law Courts considers a range of factors – from identifying which among your assets are obtained during your marriage, all the way to determining each person’s likely needs in the future.

The Court provides 4 important steps to work out your property settlement entitlements:

  1. What is the net asset pool (assets less debts)?
  2. What have been the financial and non-financial contributions?
  3. What are each party’s “future needs”?
  4. Is the division of assets “just and equitable”?

Let’s discuss them more thoroughly.

Step 1 — What is your net asset pool (property pool)?

Property settlement begins with determining your asset pool.

You need to calculate the assets and debts that are to be divided between you and your former partner or spouse. When arranging a property settlement agreement, don’t forget to take note that:

  • All assets are included – whether they are held in joint names, either person’s sole name or the name of a company, trust or other entity that either person has an interest in, or  held by someone else on your behalf or held by you on behalf of another person, such as a child; all of these assets are included the asset pool
  • The Court also has the power to make Orders concerning assets held overseas and requires that you disclose overseas assets, not just assets in Australia
  • Assets purchased either before your relationship commenced (i.e. when you started living together, irrespective of if you later married) or after your separation are still included in the asset pool
  • Property settlement in Australia takes into account the value of assets and debts considered at the time of the agreement, not the separation date
  • Liabilities are included, irrespective of whose name they held in
  • Superannuation is generally included, because superannuation accounts held by either person are usually considered as an asset and can be divided in a property settlement. However, there are some circumstances where superannuation is not an asset but instead considered a financial resource. You should seek legal advice if you are unsure if the superannuation of either yourself or your partner or spouse is considered an asset or a financial resource.

Here are some examples of assets and debts that may be taken into account in your property settlement:

Assets:

  • Houses
  • Units
  • Land
  • Cars
  • Motorbikes
  • Savings/bank accounts or building society accounts
  • Investments
  • Money that is owing to you
  • Shares
  • Companies
  • Trusts
  • Businesses
  • Jewellery
  • Furniture/household contents and appliances
  • Artwork
  • Superannuation
  • Caravans
  • Trailers
  • Timeshare
  • Tools
  • Boats/vessels
  • Life insurance that can be cashed in before death – i.e., has a surrender value

Debts:

  • Mortgage
  • Overdraft
  • Line of credit
  • Personal loan
  • Credit card
  • Business loan
  • Motor vehicle loan
  • Loan/monies owing to other third parties such as a family member or friend
  • Taxation debts
  • Centrelink debts
  • HECS/HELP debts
  • Selling costs on a property or other assets such as commission, brokerage fees, auctioneer’s costs and costs to prepare a property for sale

It’s possible that you may not know your former partner or spouse’s assets and debts.

In cases like this, you can directly ask the other person for information. If the value of an asset is not agreed to by both of you, you may need to jointly instruct a professional valuer to provide a valuation.

We can refer you to one of our trusted partners who can prepare a joint registered valuation should you require.

In this step 1 of t he property settlement process, keep in mind that you and your former partner or spouse have an obligation to provide what is referred to as financial disclosure – meaning all documents and information relevant to your assets and debts, financial resources, incomes and anything otherwise relevant to your financial circumstances should be stated and disclosed upon request.

Step 2 — What have been the financial and non-financial contributions?

It is wrong to assume that financial contributions are the only things that matter in a property settlement agreement.

In fact, the Court considers every financial and non-financial contribution to your household – including contributions made when you first started living together, during the relationship and after separation.

For financial contributions, the ones you and your former partner have each provided are broken down into initial contributions, contributions during the relationship and contributions after separation. These kinds of financial contributions can include:

  • Assets already owned when you started living togther
  • Earnings over the length of the relationship
  • Gifts
  • Inheritances
  • Redundancies
  • Payouts

Post-separation contributions, on the other hand, refer to any payment you or your former partner or spouse made after the relationship had ended. These could include things such as mortgage repayments, rates and water on the former matrimonial home.

For non-financial contributions, these day to day duties ensure the household runs smoothly and are given valuable merit in a property settlement agreement:

  • Cooking
  • Cleaning
  • Caring for children
  • Bookwork
  • Gardening
  • Doing renovations
  • Managing finances

Step 3 — What are each party’s future needs?

Sometimes, one party may have greater needs in the future than the other. As such, the Court also considers this kind of situation when doing adjustments in the percentage split of properties.

How is this possible?

Either you or your former partner might need more support in the future due to the following reasons:

  • Having to handle the primary care of a child or children
  • Earning less income than the other
  • Having health concerns that require ongoing treatment or needs
  • Being at a much older age than the other (therefore, having less working life before retirement age to re-establish themselves)

Step 4 — Is the division of assets “just and equitable”?

The final step of property settlement evaluates if the proposed asset division is just and fair to your circumstances. However, it’s not entirely up to you to decide what’s fair or not – the Court holds that power.

The Court will begin by looking at the types of assets each party holds. Assets such as shares, properties, cars or bank accounts can be sold or converted into cash, whereas superannuation can only be accessed at retirement age. However, if you are close to retirement, your superannuation may be treated as a cash asset.

Your circumstances are unique, which is why the Court considers all important factors like contributions (both financial and non-financial) and future needs when managing the division of assets between you and your former partner.

If in doubt, always seek legal advice about property settlement.

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