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PO Box 161 Kempsey NSW 2440

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Everything you need to know about Property Settlement

Property settlement is the division of your property between yourself and your partner after separation.

Your property might include the family home, car, bank accounts and even your superannuation.

When do we need to sort out our property?

If you are (or have been) married:

Your property settlement can happen at any time before divorce, or within 12 months after your divorce;

De facto relationships:

The property settlement must take place within two years of separation.

If you are outside of this time, you should seek legal advice urgently. In some situations, you may be able to ask the court for extra time.

How will our property be divided?

This will depend on your circumstances. The Family Law Act sets out a four-stage process which courts must follow when determining a property settlement.  The following is a useful guide:

 1. Prepare a list of all the assets and liabilities of both parties, known as a “property pool”;

2. Consider the contributions of each of the parties towards the property pool. This can include different kinds of contributions such as income and assets brought into the relationship, as well as contributions as parent and homemaker;

3. Consider whether there are any factors relating to the future needs of the parties. For example, differences in health, income earning ability and parenting roles;

4. Finally, consider what outcome would be just and equitable for you both.

This process doesn’t always result in an equal division of the property pool.  It’s a good idea to get legal advice so you can understand what’s fair in your circumstances.

Can we divide our property ourselves?

If you can reach an agreement about how to divide your property, that’s great! The next step is to make sure the agreement is binding and enforceable.  It’s important neither party can change their mind so that you can both have certainty moving forward.

There are two ways to finalise a property settlement:

1. An application for consent orders. The consent orders are prepared by the parties, or their solicitors, and contain the terms of the agreement.  The form is filed with the court and, once approved, the orders are enforceable. Neither of you needs to attend court and the application can be filed online.  Legal advice isn’t mandatory, however, it’s a good idea to get it.

2. Binding financial agreements. This needs to be prepared by a qualified solicitor and is a contract between the parties detailing how their property will be divided.
Both parties need to obtain independent legal advice for the agreement to be binding.

What if we don’t agree about property?

If you can’t reach an agreement it’s a good idea to get legal advice to understand your options.  Court proceedings can be expensive and stressful. Your solicitor can advise you on the steps to minimise the cost.  For example, you might be able to try mediation before going to court.

Can we help you with your separation or property settlement? Give our team a call.