Property Settlement FAQ
What is property settlement?
In a family law context, property settlement is the division of assets, liabilities and superannuation following separation.
Do I need to do obtain a property settlement?
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.
How do I resolve property settlement matters?
Property settlement can be resolved either by reaching agreement or by a decision of the Family Court.
If 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 agreement, you may file an Initiating Application with the Family Court.
Is the property settlement process the same for married and de facto relationships?
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.
How are property settlement matters considered?
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:
– What are the assets and liabilities?
– What were the contributions of each party?
– What are the “future needs” of each party; and
– Is the proposed division just and equitable?
Whilst this approach will not apply in every situation, it is often useful to consider the above steps.
What type of contributions are considered?
There are generally three kinds of contributions:
– Financial contributions;
– Non-financial contributions; and
– 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”.
What are “future needs”?
Some factors the Family Court might consider 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.
I don’t know what assets my partner has. Can I find out?
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.
Are there any time limits?
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.
Is superannuation included in property settlement?
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.
I am worried my partner will get rid of assets. What can I do?
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.
What is a financial agreement?
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.
When can a financial agreement be made?
Financial agreement can be made before, during or after a marriage or de facto relationship.
Can a financial agreement be set aside?
Financial agreements can only be set aside in very limited circumstances.