Property settlements

When married or de facto couples separate, it is important that the assets and liabilities of the relationship are divided fairly. There is no presumption at law that separated parties should share equally in the assets and liabilities of the relationship.

The individual facts, evidence and circumstances of your case will determine the percentage of the asset pool that you are entitled to. The Family Law Act 1975, sets out the legal principles that the Court considers when asked to decide financial / property disputes after the breakdown of a marriage or de facto relationship – which we will explain to you.

property settlement lawyers

Property settlement lawyers in Ballarat

We have the expertise and experience to provide you with clear advice. We will provide you with a clear list of the documents / information that you need to provide and tell you what you need to know.

Most importantly, we will provide realistic legal advice as to what your property / financial entitlements are likely to be and guide you through the settlement process to ensure that you get the best possible result.

How Cargill Family Law can help you with your property settlement

Our Property Settlement service is available in Ballarat, Bacchus Marsh, Melbourne, and surrounds. We can help with:

  • Provide you with clear advice about what your legal rights are and what your future entitlements are likely to be
  • Recommend the most suitable strategy to obtain the best possible outcome for you
  • Obtain all necessary evidence, to include expert valuation evidence
  • Collaborate with other professionals to ensure that you obtain the necessary advice about any adverse consequences that could result from your property settlement (for example adverse taxation consequences)
  • Prepare superannuation splitting terms or orders on your behalf
  • Advocate on your behalf throughout the negotiations
  • Draft the terms of your property settlement agreement
  • Prepare the necessary court documents to commence legal proceedings and advocate on your behalf throughout the proceeding in the event that it has not been possible to resolve your matter outside court.
property settlement lawyers ballarat

When to commence family law property proceedings

Commencing family law property proceedings is the option of last resort when all reasonable attempts to negotiate a fair property settlement have failed.

If you find yourself in the court system, you will be greatly assisted by a lawyer who has the experience and knowledge to litigate effectively on your behalf and to ensure that all relevant information is put before the Court.

Time limits to be aware of:

The parties are required to make an application for property orders within two years from the date of separation.

An application for property orders must be brought within one year of a divorce becoming final.

In circumstances where the parties have exceeded the applicable time limit and where one party does not consent to property orders being sought, a special application seeking permission from the Court to proceed out of time will need to be made. These types of applications add a layer of cost and uncertainty that is best avoided if possible.

Rachel negotiated a very good outcome for me
without the need to go to court

“Like most people, my family law matter was something I didn’t want to deal with until I was faced with the prospect of proceedings being commenced in court. I engaged Rachel Jones as a matter of urgency (impending proceedings) and from the very beginning, I knew I had made the right choice. Rachel took control and explained, in very clear language, what the process would entail. I’ve now come to the end of my family law matter and I couldn’t be more happy with the outcome. I feel like I walked away with a very fair outcome. Rachel was no push over and she negotiated a very good outcome for me without the need to go to court.”

– Edward, Ballarat

Property settlements FAQs

Yes. If you have been unable to settle your family law property matter informally, you must commence family law property proceedings within 12 months of the divorce order becoming final or within two years of separation for de facto relationships. If these time limits have expired, you will need need to make a special application to seek the Court’s permission – which may not be granted.

There is no automatic right to a 50% split of the assets and liabilities. As to what percentage of the asset pool you are entitled to, will depend upon a range of factors and evidence specific to your case.

There are many factors that will influence how the assets and liabilities should be divided. Common factors that can impact on the final outcome include:

  • Where the parties made an agreement to keep their assets and financial interests entirely separate and acted consistently with that agreement throughout the relationship
  • Where one party owned significantly more assets prior to the commencement of the relationship
  • Where an asset owned by one party prior to the commencement of the marriage has grown significantly in value during the relationship
  • Where one party has received an inheritance or substantial gift during the relationship
  • Where one party has received a payout during the relationship, such as a damages payout resulting from a legal claim
  • Where one party is the primary caregiver of the children
  • Where one party is significantly older than the other or suffers from a significant medical condition that increases their individual needs and / or reduces their income earning capacity
  • Where one party is unemployed or is unable to earn a reasonable income
  • Where one party earns significantly more than the other
  • Where one of the parties receives regular payments from a trust managed by an external party

You should start collecting all documents that prove what assets and financial interests both you and your ex-partner hold. Such documentation includes:

  • Details of all properties owned by both parties
  • Real estate agent appraisals of property owned
  • Bank statements of all bank accounts to include mortgages, credit cards and loans
  • Superannuation statements of all superannuation interests
  • A Redbook valuation of all vehicles owned
  • A current share portfolio valuation of all shares held
  • Details of any interests held in any companies, trusts or partnerships
  • Details of any other assets or liabilities that you are aware of
  • Your last three income tax returns
  • Your employment contract
  • Five of your most recent pay-slips;
  • Receipts demonstrating the recent sale of property; and
  • Any other documentation that you think is relevant to your financial position.

The earlier that you receive independent legal advice – the better. Knowing what your legal rights and entitlements are likely to be – will give you both peace of mind and will establish a firm foundation for future negotiations.

To negotiate a fair property settlement, you could consider:

  • Attending Property Dispute Resolution (PDR) or a mediation facilitated by an accredited mediator; or
  • Retaining a family lawyer to negotiate a property settlement outside court on your behalf.

Property Dispute Resolution (PDR) is an informal mediation where the parties come together before a trained mediator to try and reach an agreement as to how they will divide their assets and liabilities. PDR services are offered by a number of community organisations. Similarly, there are a number of private mediators / family lawyers that specialise in mediating family law property settlements.

YES! It is very important that you obtain independent legal advice before you attend PDR so that you gain a clear understanding of what your legal rights are and what your future property entitlements are likely to be.

Remember, the mediator that facilitates your PDR conference with your ex-partner, must act impartially and cannot provide you with independent legal advice.

Find out more about how we can assist you prepare for your Property Dispute Resolution conference.

There are two main ways to formalise family law property settlement agreements:

  1. By making an Application with the Family Court for property orders by consent. Applying for property orders by consent involves submitting proposed property orders and a detailed application where both parties have made full financial disclosure – to be assessed by a Registrar of the Family Court. Whilst it is not necessary for both parties to be individually represented by a lawyer – it is important to note that the orders will not be made if the Family Court Registrar decides that the proposed orders are not just and equitable in all of the circumstances.
  2. By entering into a Binding Financial Agreement. This process strictly requires both parties to be individually represented by an Australian Legal Practitioner. A pre-requirement of entering into one of these agreements is that each party must receive independent legal advice as to the effect of the agreement and as to the advantages and disadvantages of the terms under the agreement. In the absence of one or both parties not receiving the required independent legal advice, the agreement may be declared non-binding and set aside in the future.

Yes! The superannuation held by both parties are assets of the relationship which must be considered in all family law property settlement negotiations and settlements.

It is important to note that the majority of family law property settlements result in a sum of superannuation being transferred from one party to another.

The only way that superannuation in an accumulated industry fund can be transferred from one party to another in domestic relationships, is pursuant to a court order or pursuant to the operative terms of a binding financial agreement.

Whether you finalise your property settlement by way of consent orders or by way of a binding financial agreement – the Trustee of the applicable superannuation fund must first consent to the proposed superannuation splitting orders or terms. This step of seeking the Trustee’s consent, must be conducted ‘prior’ to seeking court orders or prior to signing the binding financial agreement.

Rachel always took the time to explain every step

“I wanted to say a big thank you Rachel from Cargill Family Law for her help through a very difficult divorce. She is very professional and made me feel in control throughout the the whole process and always took the time to explain every step. I wouldn’t hesitate to recommend Cargill Family Law. Thank you again for all your hard work.”

– Mary, Ballarat

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