Property Settlement
We understand that resolving your financial relationship with your former partner can be one of the most stressful parts of the separation process. Who pays the home loan and bills? Who gets to keep the house? How do you value the family business/company/trust? Will tax and stamp duty be payable? What happens to superannuation?
Once parties are married or fall within the Family Law Act’s definition of “de facto” couple, a financial relationship exists between the parties until an order is made, or a Binding Financial Agreement is signed, to finalise this relationship and to extinguish one partner’s financial claim against the other.
There is no presumption that all properties/assets should be split equally between the parties.
The goal of every property settlement is a ‘clean break’ where all your assets and liabilities belong to you. Without a property settlement, your former partner could make a claim against your current assets and liabilities even if these were obtained after separation. The reverse is also true. The asset pool does not ‘freeze’ at separation.
A property settlement is not limited to just real estate. The Family Law Act defines “property” to include assets such as:
- Real estate.
- Interests in companies and trusts.
- Savings held in a bank.
- Shares and cryptocurrencies.
- Motor vehicles, this includes recreational vehicles such as boats, caravans, jet skis, and ATVs.
- Personal valuables such as jewellery, watches, artwork and wine.
- Superannuation
- Liabilities including loans/mortgages, credit card debts and other loan/credit facilities.
Consent Order
For couples that have agreed on their settlement, we recommend that they obtain a property settlement via an Application for Consent Orders. This is the quickest, easiest and most cost-effective way to obtain a property settlement. This process involves a set of documents signed by both parties, which are then filed at Court. No one needs to attend Court. Once orders are made, the parties will have their property settlement and can proceed to implement their agreement (eg. Transfer of property/shares/cars, payment to the other spouse, resignation from positions within trust/companies, and splitting of superannuation).
You should budget for the Consent Order process to take at least 4 to 6 weeks. In some cases, the Court can deal with matters more urgently but it is not automatic.
Binding Financial Agreements
A Binding Financial Agreement (BFA) is a legally binding document which sets out the parties’ agreed property settlement, and any spousal maintenance payable.
There are very strict requirements on what constitutes a BFA under the Family Law Act. Each party needs to receive independent legal advice before signing a BFA.
A document signed and witnessed by a Justice of the Peace will not suffice.
It is often easier for parties to obtain a property settlement via a Consent Order. But in certain scenarios, a BFA can be advantageous. We can advise you if this applies to you.
Let’s chat
Use our form to discuss your legal enquiry. Please be as detailed as possible.
Or call us for a free no-obligation quick chat. Even if you are unsure if it is a Family Law problem, we can point you to where to start.
0422 933 232
167 Flinders St, Adelaide SA 5000
