Muhammad Manan
When a marriage or de facto relationship breaks down, one of the first questions often asked is "What happens to our stuff?"
It’s a natural concern. Dividing property and financial interests fairly can be complicated, emotional, and sometimes contentious.
Luckily a well-prepared property settlement agreement can make the whole process so much smoother.
A good family lawyer will often explain that a property settlement is more than just who gets the house. It actually covers quite a range of financial matters, and can be customised to fit the unique circumstances of each couple.
Here’s what can be included, and why it’s so important to get it right.
1. Real Estate Assets
The family home is usually the largest asset in the relationship and often the centrepiece of property settlement discussions.
But it’s usually more complicated than just “who gets the house”. A property settlement can determine:
- Who retains ownership of the home.
- Whether the property is to be sold and how proceeds are split.
- Whether it could be kept in trust for children.
- Whether one party will buy the other out, and how that will be financed.
Other properties, including investment homes, holiday houses, and vacant land, are also covered under a property settlement agreement.
2. Financial Assets
Savings and other cash can be divided or retained by agreement.
This also includes:
- Offset accounts.
- Cryptocurrency holdings.
- Share portfolios or managed funds.
- Bonds.
- Term deposits.
Both you and your partner must provide full financial disclosure of these assets. Hiding them can cause issues down the track.
3. Superannuation
Superannuation is often misunderstood in family law.
While you can't access it early, it is treated as property under the Family Law Act and can be split between parties. This means one partner’s superannuation entitlements can be divided, even if they’re not yet accessible.
This process requires specific documentation and compliance with superannuation fund rules, which is why good property settlement legal advice is always recommended.
4. Business Interests
If you or your partner own a business, this can significantly complicate matters. The value of the business and each party's involvement must be carefully assessed.
Your property settlement agreement can determine:
- Whether the business is to be retained by one party.
- How its value is apportioned.
- Arrangements for buying out a partner’s share.
5. Debts and Liabilities
A common question often asked is: "What happens to the debts?"
Well, just as assets are divided, so too are liabilities. This includes:
- Mortgages.
- Credit card debts.
- Personal loans.
- Business loans.
- Tax liabilities.
These are often just as contentious as assets, so we always make sure they are clearly addressed. We want to avoid one party being left with more than their fair share or being pursued for debts they didn’t agree to take on.
6. Vehicles and Personal Property
Cars, boats, motorcycles, and even caravans can be allocated to one party or the other in a settlement. You can also include:
- Furniture.
- Jewellery.
- Art.
- Tools of trade.
- Musical instruments.
- Pets.
Yes, pets can be included in a settlement agreement.
While the law treats pets as property, we understand that there’s a lot more emotional attachment involved. We always strive for a solution that recognises the pet's wellbeing, as well as each partner’s love for the pet.
7. Spousal Maintenance
Sometimes one party may be entitled to spousal maintenance. This is ongoing financial support after separation. This can be included in your property settlement agreement, and may be paid as:
- A lump sum payment, or
- Periodic payments for a set duration.
Whether you’re eligible for maintenance depends on your need and your partner’s capacity to pay, which is assessed case by case.
The court will consider the following:
- Your age and health.
- Your income, property, and financial resources.
- Your ability to work.
- Whether you have the care of your shared child and need to provide appropriate housing.
- The effect of any family violence.
- If the marriage has affected your ability to earn an income (such as if you were a stay at home parent).
Binding Financial Agreements or Consent Orders
Once you and your former partner have agreed on a property division, you can formalise it.
This is done either by a Binding Financial Agreement, which is a private contract, or Consent Orders, which are approved by the Family Court.
Property settlement lawyers, like those at Randle & Taylor, often help clients prepare Consent Orders because they are legally enforceable. They also do not require court appearances if both parties agree.
Why It Matters
Having a clear, legally binding property settlement agreement offers peace of mind. It protects both parties from future claims and provides certainty, allowing each person to move on with their life.
Keep in mind that each relationship is different, and so is each property pool. There’s no one-size-fits-all solution. That’s why personalised legal advice is key.
Frequently Asked Questions
Q: Do I have to go to court to get a property settlement?
No, if both parties agree, you can formalise the agreement via Consent Orders without needing to attend court.
Q: What if we were in a de facto relationship?
You still have rights under the Family Law Act, and the same types of assets and liabilities can be included.
Q: How long after separation can we do a property settlement?
De facto couples have 2 years from the date of separation. Married couples have 12 months after the divorce is final.
Q: Can we make our own agreement without lawyers?
You can, but it’s not legally binding unless formalised correctly. Legal advice helps protect your interests.
Key takeaways
- Property settlement agreements cover real estate, financial assets, superannuation, and business interests.
- Debts, vehicles, personal property, and spousal maintenance can also be included in settlements.
- Legal advice is helpful for creating binding agreements, ensuring fairness and clarity for both parties.
