Family Law Property Settlement

The best outcome for separating couples is to reach agreement by consent regarding the division of property of the relationship. Even if you have reached agreement with your former partner, the Family Law Rules outlining the division of property are complicated, and it is best to seek family law legal advice about your entitlements before accepting an offer of settlement. Contact a Family Law Network Australia VIP service provider.

You can apply to the Family Court or Federal Circuit Court for orders for property settlement. The Family Law Act 1975 sets a time restriction of 12 months after your divorce to make an application for property settlement. Please note that the time limitation for de facto relationships to commence proceedings to obtain your property settlement entitlements is two years from the end of the relationship.

To view the relevant sections of the Family Law Act 1975 regarding financial property settlement issues for married couples please visit our Family Law Resources page.

Please note that in Western Australia the Family Law Act 1975 does not apply to de facto relationships. However, the approach on determining property settlement is essentially the same. The applicable legislation is the Family Court Act 1997. You can view the Family Court Act 1997 from our Family Law Resources page.

Four Step family law property settlement process.

To determine a fair and equitable family law property settlement a four step process is applied to the parties’ circumstances.

This process involves:-

  1. Identifying the parties’ net assets;
  2. Assessing the contributions of each party s79(4) Family Law Act 1975 - this is their contribution to the acquisition, conservation or improvement to the asset pool. This includes non-financial contributions as parent and homemaker.
  3. Future needs s75(2) Family Law Act 1975 – this requires assessing the future needs of both parties, taking into account a variety of things including:
    1. Age
    2. Health
    3. Earning capacity
    4. Whether the party has the care or support of children
    5. The financial circumstances of any new relationship

Where appropriate, an adjustment to the parties’ contributions can be made after consideration of those factors; and

  1. Practical effect – the final step in applying the property settlement process is to consider the practical effect of the proposed settlement, and achieve a result which is fair and equitable in all of the circumstances.

Once agreement for property settlement has been reached there are two ways the agreement can be formalised:-

  1. Form 11 Consent orders filed through the Family Court or Federal Circuit Court; or
  2. Entering into a binding financial agreement

Your family law lawyer can advise you which option is the most appropriate for your circumstances.

Any property settlement obliges both parties to make full and frank disclosure of their financial circumstances. Failure to disclose relevant matters can result in serious consequences.