Property Settlement in Sydney & NSW

If you are considering separation or have separated, there are certain financial matters you must consider, and where possible, discuss with your partner. The discussion should include talking about:

1. How you might divide your assets such as real estate, cars, shares, furniture and any other items of value.
2. How you would split superannuation.
3. If one spouse will need to provide financial support for the other, known as spousal maintenance.
4. If you have children, what financial arrangements may need to be made to support them, known as child support.

Parties are required to make a genuine effort to resolve property disputes prior to starting a case. The Family Law Rules set out the steps parties are required to take (“pre action procedures”).

Prior to filing for property orders, parties are expected to:

1. Participate in dispute resolution such as negotiation, conciliation and counselling;
2. Explore options for settlement; and
3. Comply with duty of disclosure.

The circumstances in which the Court may accept that it was not possible (or appropriate) for a party to follow the pre action procedures include, but is not limited to, matters involving fraud, family violence and urgency.

There are serious consequences for failing to comply with pre action procedures including costs penalties.

If you are unable to reach an agreement through the pre-action procedures, you may then make an application for property orders to the Family Court or the Federal Circuit Court of Australia.

It is important to note that you have 12 months to make an application for property or maintenance orders once your divorce becomes final.

If you wish to make an application after the 12 month period you will have to obtain the Court’s permission to apply.

If you and your partner are able to reach an agreement with respect to property outside of court, this may save you both a great deal of time and money – not to mention stress.

To formalise your agreement and make it binding, you may apply for Consent Orders in the Family Court of Australia. Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing. The Court must be satisfied that the orders you ask for are enforceable and are just and equitable.

Consent orders may be filed at the nearest Family Law Registry. Once filed, the Court will consider the proposed orders in the parties’ absence.

Consent orders may deal with the following issues:

1. Payment of money.
2. The transfer or sale of property.
3. The splitting of superannuation.
4. Spousal maintenance.

If you and your former partner are unable to reach an agreement, you may make an application for property orders to either the Family Court or the Federal Circuit Court of Australia. The application must usually be made within 12 months of your divorce becoming final unless you have the Court’s permission to make an application outside of this time.

It is important to note that there is no formula used to divide your property. No one can tell you exactly what orders the Court will make. The decision is made after all the evidence is heard and the Court decides what is just and equitable based on the unique facts of your case.

The Family Law Act sets out the general principles the court considers when deciding financial disputes after separation. The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

• Working out the net asset pool of both parties. This is the total value of all assets owned by either or both parties, including anything attained before or after marriage minus liabilities.
• looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings;
• looking at indirect financial contributions by each party such as gifts and inheritances from families;
• looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking; and
• future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.

• The practical effect of the proposed property settlement – The court will look at whether the overall settlement is "just and equitable" to both parties, taking into account all of the factors mentioned above.

Superannuation is treated as property under the Family Law Act and is generally taken into account when making property orders.

The way in which your assets and debts will be shared between you will depend on your unique family situation. Your financial settlement will probably be different from others you may have heard about.

If you require advice or assistance with respect to a property settlement in NSW, or for assistance with any other family law matter, contact our specialist solicitors in NSW today.