After the breakdown of a marriage or de facto relationship, the division of property is critically important to the financial future of both parties. While some property settlements can be reasonably straightforward, others can be extremely complex. In either case, accurate and prompt legal advice is vital.
At O’Sullivan Davies, our team are experts in negotiating and/or litigating family law property settlement matters and can advise on your likely entitlements, with a view to achieving an appropriate settlement as quickly and efficiently as possible. With years of experience in family law property settlements, we offer a range of options to achieve this division including negotiated settlements, mediation, arbitration, and (where agreement is unable to be reached) Court proceedings.
Where an agreement is reached, we can advise on the most appropriate and cost-efficient means of formalising matters to ensure security for the future. In some cases this will involve obtaining consent orders through the Family Court of Western Australia; in others it will be more appropriate to enter into a Financial Agreement so as to exclude the jurisdiction of the Court in the future.
Our Family Law Property Settlement Lawyers Can Help
Our lawyers are experienced in ensuring that all relevant matters are considered in determining an appropriate settlement, including taxation and Stamp Duty implications, recent legislative changes, and other issues which when overlooked can have serious consequences. If you require legal advice on family law property settlements, our Perth lawyers can assist. Contact our team today on +61 8 9426 4711, or simply fill out the enquiry form below.
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A property settlement is the division of property of a couple, following their separation e.g. who will keep the house, how the bank accounts should be divided, etc.
Yes, eligible de facto partners can obtain property settlements largely in the same way as married couples who separate, although there are presently some differences in Western Australia in the way superannuation is treated (see below).
We strongly recommend that you meet with our lawyers to go through the agreement you have reached and ensure that the agreement you are entering into is just and equitable in your circumstances.
A property settlement can be one of the most important financial decisions you make in life and it is therefore important you have all the necessary information prior to entering into a final agreement.
We strongly recommend you enter into Consent Orders or a Financial Agreement regarding your property settlement.
Without Consent Orders or a Financial Agreement, your partner/spouse can make an application to the Family Court many years after separation, which may have serious consequences for you at that time.
If real estate is to be transferred, Consent Orders or a Financial Agreement will also mean the requirement to pay stamp duty is exempted.
The outcome depends on a number of factors including parties’ contributions and any adjustment factors relevant to the parties’ circumstances. The Family Court must consider whether the property settlement is just and equitable in the circumstances.
Again, the outcome depends on a multitude of factors.
Australia has a no fault family law system. The reasons for separation are irrelevant when determining property settlement matters.
Each person has an obligation to provide full and frank disclosure of all documents and information relevant to the issues in dispute. In other words, they MUST produce all information relating to their assets, liabilities, superannuation, and financial resources as well as their income. Property that has been disposed of shortly prior to or after separation should also be disclosed.
Failure to do this can have severe consequences including orders being “set aside” (erased) in the future.
We typically also conduct property and company searches for clients, and it is possible, if Court proceedings have commenced, to issue Subpoenas to compel for instance a bank, or an accountant to provide information or documents.
All assets of parties in Australia and overseas will be considered in deciding how to divide assets between parties.
The value of some items will be easier to determine than others. For instance, with cash, you take the current balance of the bank account/s.
Where there is real estate, you might agree on a value after obtaining real estate appraisals, or engage a joint valuation to be conducted by an expert.
Businesses are also typically valued by an independent expert.
We can assist you to engage the appropriate expert to determine the value of a multitude of assets including uncommon ones such as water licenses.
For married couples in Western Australia, superannuation is considered to be property and the Family Court can roll over one party’s superannuation to the other, although whether the Court decides to do this is discretionary. It is important to note that superannuation is rolled over into a superannuation fund of the recipient parties choosing, and is not converted into cash.
Superannuation is presently considered a financial resource for de facto couples in Western Australia and cannot be split/rolled over. Legislation to change this has passed the Federal Parliament in 2020 and is expected to pass in Western Australia’s State Parliament soon.
Depending on the circumstances, it might be appropriate for the other person to pay all of the mortgage, or for you to contribute towards the repayments.
We encourage you to contact our office to discuss this as soon as possible after separation so that we can assist you to put into place a plan for your future financial commitments.
This really depends on a consideration of the assets and liabilities in your case and an assessment of what is just and equitable in your case.
At O’Sullivan Davies we can discuss your key priorities e.g. keeping your house, and work with you to try and achieve these objectives.
The values of assets and liabilities and any financial resources are taken as at the time an agreement is reached, or at a final trial (if no agreement is reached prior), and not as at the time of separation.
Although in some circumstances there can be arguments made for certain assets to be categorised separately, or greater weight given to one person for contributing to that asset, the date the property is valued has significant consequences as it can be 24 to 36 months before a matter is heard at a final Trial in the Family Court.
This is another reason why it is important for you to get advice early so that these issues can be taken into consideration when having discussions about property settlement, and all attempts can be made to come to an agreement without the need to litigate your matter