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Property Settlement

Married Couples

The Family Law Courts have the power to deal with all property and financial resources held by the parties to a marriage and divide them fairly.

In general, when the Court is required to make an assessment of the respective entitlements of the parties it will follow the following process:

identify and value all available property, liabilities, superannuation and financial resources;
consider the contributions made by the parties both financial and non-financial during the relationship and since separation;
look at the parties’ future needs and resources and determine whether it is appropriate to make an adjustment of the available property and/or resources in favour of one party having regard to those factors;
determine whether the orders for the division of the property, liabilities and financial resources in accordance with steps 2 and 3 results in a fair (just and equitable) property settlement. It is unusual for there to be a further adjustment at this stage.

Applications for property settlement may be filed with the Family Law Courts at any time (subject to the application being filed within 12 months of the date of a divorce becoming final). Property matters can also be resolved by negotiation and formalised as a binding financial agreement.

De Facto Couples

As of 1 March 2009, property and maintenance matters for de facto couples in all states and territories, except South Australia and Western Australia, are dealt with under the Family Law Act 1975. This means that de facto couples now have the same financial rights and remedies available to married couples and that any disputes will be dealt with by the Family Law Courts. De facto couples include same sex couples.

In New South Wales, there is a significant difference between the property and maintenance rights under the Property (Relationships) Act 1984 (still applicable to those couples who separated prior to 1 March 2009) and those under the Family Law Act 1975

De Facto Couples that Separate after 1 March 2009

The Court has the power to deal with all property and financial resources held by the parties to a de facto relationship and to divide them justly and equitably after taking into account a number of factors.

Applications for property settlement must be filed with the Court within 2 years from the date of separation. Property matters can also be resolved by negotiation and formalised as a financial agreement.

De Facto Couples that Separated before 1 March 2009

De facto couples that separated before 1 March 2009 will not be able to deal with their matters under the Family Law Act 1975 unless both parties agree otherwise. The Property (Relationships) Act 1984 will deal with financial matters. Under the Property (Relationships) Act 1984, the Court has the discretion to divide property between parties to domestic relationships. It also allows Courts to provide maintenance payments to parties to a domestic relationship, in limited circumstances and for limited periods.

The Property (Relationships) Act 1984 focuses primarily on the contributions made by each party to the relationship and does not take into account in any significant way the future needs of the parties.

Financial Agreements

For information regarding financial agreements please see our section: Financial Agreements

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