How is Property Settlement determined?

Divorce and separation are never easy. Complex procedures and hours of paperwork can be draining enough without the added pressure of your private property and assets being thrown into the mix. You might even need property legal advice

Unfortunately, there’s no easy way around this. 

A property settlement is when you and a partner decide to separate and the assets and property are divided up in a legally binding decision. How are these determined and what does the agreement actually entail? 

Who can get a property settlement agreement?

Anyone who is legally married or in a de facto relationship can get a property settlement – even if they aren’t actually separating. That’s because a property settlement is primarily an agreement about property, finances, and debts – not your relationship itself.

What is included in a property settlement?

Property agreements should include the following items where applicable:

  • Your home, and any other real estate under either of your names
  • All money – whether cash or held in bank accounts
  • Investments such as share portfolios
  • Insurance policies for the car, house
  • Inheritance money and assets
  • Valuables including jewellery 
  • Other valuable assets
  • All debts such as loans, mortgages, and credit cards

*Note that de facto partners in Western Australia cannot split their superannuation, however, a court may factor superannuation into a decision if necessary.

Who gets what in a property settlement agreement?

You may have read somewhere that it’s a 50/50 split. This isn’t the case. In many cases it will depend on various aspects of your situation, for example, the Family Law Act outlines some key areas that influence the decision if made in court:

  • The value of your assets and debts
  • Any direct financial contributions made by either party – such as salary and wages
  • Any indirect contributions such as gifts and inheritance

Depending on where and how your settlement is finalised – it will come down to both parties signing off on a legally binding agreement.

What other adjustments can be made to a settlement in court?

In some cases, a court may take into account certain aspects of a person’s life circumstances such as:

  • How many children are being cared for
  • Presence or absence of a community and support network
  • Age, health, and employment prospects

How exactly is a court decision determined?

When it comes to a court decision on your property settlement, various aspects of the Family Law Act will come into play – most importantly the section that allows for a “fair and equitable” distribution of assets. What does this really mean?

A judge will look at all the available facts, and after weighing up various factors (like those mentioned above) they will make a decision that accurately reflects the situation. There is no exact way of determining mathematically how this takes place – rather the judge will look at the situation as a whole and narrow it down to a solution. For example, a judge may decide to dissolve all assets and split the money in a particular way. 

Do I HAVE to go to court for a property settlement?

Not necessarily. In fact, if you play your cards right and your partner is on the same page, you can effectively avoid going to court in the first place. This will depend on your situation, what assets are in play and how easy the division of those assets is. What you will HAVE to do is find a lawyer to assist with the process – at least officiate the agreement. 

Can two parties find a mutual settlement?

Yes, it’s certainly possible, and if you can – all the better for you. If you can amicably resolve property disputes before heading into a settlement agreement then this puts you on a good footing to deal with the matter easily and as quickly as possible. Lawyers, with their experience and negotiating power, can often assist couples in finding an agreement that is suitable for both parties. You can also seek help from family dispute resolution services which can assist in finding common ground on these issues.

Is a property settlement binding? 

The simple answer is yes, it is. Once a decision has been made, either in the courts or otherwise, a property settlement agreement is legally binding once officiated by the legal authority. Breaking this settlement is an illegal offence and will have consequences, and taking further action against a former partner in this context can be extremely expensive and difficult. 

Worried your settlement will end up in Court? Speak to a lawyer ASAP

If you see things start to go south, either before or during a divorce, you ought to speak to a qualified lawyer who can give you legal advice on the issue. A lawyer won’t just know the ins and outs of your legal position – they can also give you credible advice on how to steer the matter away from the courts and resolve it in your best interests.

Don’t wait for your situation to deteriorate – call a family lawyer today. 

*This article does not constitute legal advice. To receive qualified legal assistance and advice on personal matters contact a legal professional.