Property Settlement

Property settlements can be complex and contentious – our job is to guide you through the process towards a fair and realistic outcome.

We will help you to avoid mistakes, and recognise strategies being used against you. Typically, these can include subtle bullying and intimidation and using the property settlement to try and correct perceived wrongs.

Alongside the emotion of separation and divorce, dealing with bricks-and-mortar property, investments, shares, cars, superannuation, savings, furniture and effects, mortgages, loans, credit cards – anything that can be regarded as either an asset or a liability – can be hard. But the decisions and choices you make now can have long terms impacts so it’s critical you make these decisions in an informed way, with the best available information and advice.

Property settlement is a forensic process. We are experts at finding out about all your former partner’s assets and making sure you are treated fairly and in accordance with the law. Our approach is not to jump up and down on the spot and make a lot of noise, we are just calm, methodical, and tenacious. Even where parties are in agreement, the law still says that full and frank disclosure of all relevant facts is required. If you want to settle your matter amicably, and a lawyer is drafting or advising on court orders they are still bound to provide legal advice to you, and this can only be done after a careful review of all the relevant facts.

If you are concerned your partner may be hiding assets, asset stripping, or running up debt speak to us urgently so we can advise you what to do, and if necessary seek a court injunction.

We never make wild claims of getting you everything.  We will never give you false expectations or tell you we can get more than any other lawyer. But we will fight wild claims from the other side using the law and the facts. We will make sure you get the advice you need to get your fair settlement, in accordance with the law; we will explain the law; we will make sure you get the full benefit of the law.

Sometimes, family businesses are involved, or complex Self-Managed Super funds, or Defined Benefit Interests (such as PSS). At other times, inheritances, employee share plans, family trusts or other investments are involved. These are all included in the asset pool so get the right advice from day one so you know the limits of your case.

If the matter is complex and you and your spouse cannot agree, you should consider involving professionals including lawyers, accountants, valuers, and potentially investigators to track all the bank accounts and spending, and provide valuations of assets and to review debts.

In the end, the difference between both parties’ assessment of what is a fair split usually comes down to just a few percentage points and a short, robust, final negotiation. Make sure you know what you are fighting for and why.

Working out a property settlement involves past contributions (which can include domestic, ‘home-maker’ or non-financial contributions), inheritances, future earning capacity, and future needs (both of the parties and of any children).  The length of the relationship, the roles you played, and your future earnings potential are all relevant considerations. The aim is to get a fair outcome for everyone involved given your unique circumstances.

Sometimes there is a pre-nuptial agreement (now called a binding financial agreement or BFA) to take into account. Is it valid? Does it cover spouse maintenance or super? Could it be set aside? We have expertise in pre-nup analysis – we aim to make sure the pre-nup is in fact lawful and binding. If it can be challenged, we can help you to do that.

BFA’s are agreements made between either married or de-facto couples. BFA’s can be made either before or after the marriage or relationship commences and outline how the parties respective assets and liabilities will be dealt with in the event of a breakdown in the relationship. It is an agreement in advance of the relationship failing.

A BFA is a legal contract so it must be reasonable and cannot be signed under duress, or whilst under the influence of drugs or alcohol. To be valid both parties need to seek their own legal advice, from separate lawyers, usually from different law firms. Your lawyer has to sign a certificate confirming legal advice was given before the BFA was signed.

A BFA can introduce an element of certainty to a relationship, but can also create tensions – if you have not already discussed this with your partner we strongly urge you to bring up the subject in a sensitive way.

You need to be aware that if your situation changes, such as when children come along or long term partners become married, a new BFA might be needed.

You can enter into a BFA if you are planning to cohabit, getting married, separating, or divorcing, and whether you are in a heterosexual or same-sex relationship.

(Legislation extract)