Property Settlement FAQs

Property Settlement

In a family law context, property settlement is the division of assets, liabilities and superannuation following separation.

After the breakdown of a marriage or de facto relationship, it is necessary to terminate the “financial relationship”. The “financial relationship” is generally not terminated until an order has been made by the Family Court. An order can be made by consent, which is an agreement reached between the parties, or through the judicial determination of the Family Court.

A property settlement can be resolved either by reaching an agreement or by a decision of the Family Court.

If an agreement is reached you can file an Application for Consent Orders with the Family Court.

These applications usually do not require you to attend Court.

If you are unable to reach an agreement, you may file an Initiating Application with the Family Court.

For married couples, property settlement and spousal maintenance applications cannot be started after the expiration of 12 months after the date on which a divorce order was made.

For de facto couples, property settlement and spousal maintenance applications can only be started within 2 years after the relationship ended.

There may be some circumstances where the Court will provide permission to extend these time limits. You should seek immediate legal advice if you are close to or have passed the time limit.

The same general principles apply regardless of whether the parties were married or in a de facto relationship, however there are some differences in Western Australia.

There are no set formulas in family law and each case is considered on a case-by-case basis. Generally, the approach taken in a property settlement matter follows a four-step process:

  1. What are the assets and liabilities?
  2. What were the contributions of each party?
  3. What are the “future needs” of each party; and
  4. Is the proposed division just and equitable?

This approach will not apply in every situation. However it is often useful to consider the above steps.

There are generally three kinds of contributions:

  1. Financial contributions;
  2. Non-financial contributions; and
  3. Contributions to the welfare of the family.

Each type of contribution is generally considered by the Family Court to be equal, subject to the quality of those contributions. In the majority of cases the contributions are considered as “equal but different”.

Superannuation may be included in a property settlement for people who were married and can be dealt with in a similar manner to other property.

If you were not married, the Family Court is not able to make orders about superannuation. However. it may still be considered as a “financial resource” under future needs.

The court will consider each of the parties’ future needs in property settlement. These might include:

  • The age and health of each party;
  • The income, property and financial resources of each of party;
  • The physical and mental capacity of each party for gainful employment;
  • Whether a party has the care or control of a child;
  • The responsibility to support any other person;
  • Eligibility to obtain superannuation or a pension;
  • The length of the relationship;
  • The extent to which the relationship has affected earning capacity;
  • Any other relevant factor or circumstance.

All parties to family law financial proceedings are under an obligation to provide full and frank disclosure of their financial situation.

The types of documents that need to be disclosed may include:

  • Tax returns and notices of assessment;
  • Bank account and credit card statements;
  • Market appraisals or valuations for property;
  • Settlement statements for the purchase or sale of property;
  • Business tax returns, financial reports and the like;
  • Superannuation member statements;
  • Payslips and employment contracts;
  • Redbook valuations (for motor vehicles);
  • Shareholding statements.

If you are worried your former partner may get rid of assets you can ask the Family Court for an injunction to stop them from selling or dealing with that property.

You should seek immediate legal advice if you are concerned about this.

Financial agreements

A financial agreement is similar to a contract between married or de facto couples. Financial agreements outline how property will be divided if a relationship breaks down or for spousal maintenance to be paid. If you are thinking about a financial agreement you should seek legal advice.

A financial agreement can be made before, during or after a marriage or de facto relationship.

Financial agreements can only be set aside in very limited circumstances.

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