What property and assets can you keep? And how much of your ex-partner’s real estate, superannuation, business and inheritance can you get some of?

Kate Escobar

Financial separation of a domestic partnership is difficult but necessary to be able to move and get on with your new separate lives.

“Family law conflicts are very difficult to negotiate both personally and to the non-lawyer confronted by the confusing legal system. Having previously had a very bad experience, we felt supported and properly advised in our journey through the family law system and continue to be most grateful to Kate and to Nic for providing us with state of the art professional and personal advice.”

The best way out of Family Court litigation stress and uncertainty is well negotiated Consent Orders. You want the best structured deal in a property settlement.

If negotiation’s fall over, we can act quickly and take it to the next level by starting Court litigation for you. This will make your ex-partner take you seriously.

Despite starting litigation, we will still push hard for a settlement and you are given a realistic range of possible outcomes, so fresh settlement attempts can happen.

It is always possible, and often preferred, to settle out of court. It is much easier to settle just Property, with children it does get more complicated because we are trying to protect ongoing relationships while property is all about splitting assets up.

Common Property Questions

What property is taken into account when dividing up the assets of a marriage / relationship?
All the assets currently owned by the parties are taken into account. This includes assets that are owned either individually or jointly or owned in partnership with others and includes real property, shares, boats, businesses, trusts, bank accounts, superannuation and so on.
How are the assets divided?
It is a common belief in the community that the assets are divided 50%/50% at the end of a marriage, regardless of the length of the relationship.  This is not correct.

The Family Law Act provides for a four step process when making orders for the division of matrimonial assets.  These steps are:

  1. Identify and value the net property of the parties;
  2. Consider the contributions, both financial and non financial toward the acquisition, conservation and improvement of any property and toward the welfare of the family;
  3. Consider a number of other factors including the age and health of the parties, whether either party has the care of the child of the marriage, the financial resources of the parties and their capacity for employment;
  4. Consider whether the orders proposed are just and equitable in the circumstances.

There are many precedent cases that provide guidance on how the court deals with these factors, however, each case is determined according to its own particular facts

Do I have to go to court to divide the assets of my relationship or marriage?
No. An agreement can be reached between you and that agreement can be filed with the court and become Court Orders, which finalises the financial matters between you and your former spouse dealt with in the Orders.

It is wise to get advice from a lawyer before you enter into an agreement so that you can be aware of your entitlements. It is also wise to have legal assistance in drawing up the agreement to ensure that it is enforceable.

Are there time limits for seeking a division of the assets of a marriage?
An application to the Court must be made within 12 months of the date of your divorce. After that date you must seek the leave of the Court to file out of time. This may or may not be granted depending on the circumstances of the delay and the prejudice to each of the parties either in allowing the leave or not.
Do I have to be divorced before we divide up the assets of the marriage?
No. You can file for property settlement before a divorce.
Can I sign a pre-nup (pre-nuptial) agreement?
Yes. There are certain requirements for agreements reached in contemplation of marriage, during marriage or at the end of a marriage, including the need for independent legal advice.