Understanding Property Settlement in Family Divorce

Understanding Property Settlement in Family Divorce

The concept of divorce is common in Australia. Still, many households need to become familiar with some details that go along with it. One crucial topic when it comes to divorce is property settlement. This article will tell you the essential things you need to know about it.





What Is Property Settlement?



In general, property settlement means the division of property between spouses. The division includes the spouse’s contributions to property and marital property.



Property is anything that can be transferred from one person to another. There are three general types of it:



  • Personal Property – Personal property is anything that can be moved from one place to another. Examples of personal property include clothes and jewellery.



  • Real Property – Real property is anything fixed in one place. Examples include land, buildings, and vehicles.



  • Marital Property – Marital property is a property that the spouses bring into their marriage or property they acquire during the marriage. It is considered marital property, even if one of the spouses receives it before the marriage. In most states, the first date of marriage is considered the marriage date.



Property acquired during the relationship can be divided between the spouses as part of a property settlement, but property owned before the relationship can also be included. A property settlement may consist of property owned during and after the separation.



Liabilities will also be divided between the parties, whether they are held jointly or individually, such as:



  • Mortgages
  • Vehicle loans
  • Credit cards
  • Business debts
  • Tax
  • Stamp duty obligations





How to Make a Property Settlement Without the Court’s Assistance in Australia



If you and your spouse cannot agree on the property division, it is up to the court to decide about it. There are two ways to make a settlement without applying to the court.



The first option is to use a mediator. The mediator will help you reach an agreement about the division of the property without the court’s intervention. The mediator will help you work out a fair settlement for all parties.



The second and more common option is to use a private or binding financial agreement. It is a document signed by both parties and witnessed by a lawyer. When the terms of the document have been fulfilled, both parties can apply to the court to have it formally registered. 



A mediator or a binding financial agreement may help you agree on a property settlement and avoid going to court. Either way, consulting with your family lawyer would still be the best way to find the right next step for you.





How Much Can a Spouse Get From a Property Settlement?



Contrary to popular belief, there is no presumption that property will be divided equally between the parties. The court does not use a set formula to determine a property settlement; it considers each case individually.



The court will consider many factors when it decides how to divide property between the spouses. Those factors include:



  • The length of the marriage
  • The contribution of each spouse to the marriage and any property acquired
  • The age and health of each spouse
  • Any financial obligations of each spouse
  • Any agreements that the parties have entered into
  • The agreement can be entered into before the marriage or the separation. It can also be entered into at any time during the marriage or after the separation.





How Much Time Do You Have to Settle This?



A couple who is not married has two years from the date of separation to make a property settlement. A married couple has twelve months before their divorce is finalised to make a property settlement. The court may grant an extension of time in exceptional circumstances, but this is rare.








Property settlement after a divorce in Australia is complicated. As a general rule, it is best to have a lawyer experienced in family law help you complete a property settlement without the court’s involvement. If you cannot reach an agreement with your spouse, you can seek the help of a mediator or make a binding financial agreement. You can also apply to the court for a property settlement as a last resort.



If you need family lawyers in Redland Bay to review your case, kindly reach us at (07) 3206 8700 or info@bimalaw.com.au. Bickell and Mackenzie provide legal solutions to Redland Bay and surrounding areas. Talk to us today!


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