Know Where You Stand
with your first appointment FREE
|

Property Settlements

Uncertainty about financial matters after separation can cause confusion. To alleviate some of these concerns contact the highly skilled and experienced team at Pearsons Lawyers for your first FREE appointment so you know where you stand.

Know Where You Stand

Property Settlement Lawyers Melbourne

The specialist Family Law team at Pearsons Lawyers have decades of experience in all aspects of financial matters and property division for separating couple. This includes: 

  • The division of assets (real estate, superannuation, savings, shares, companies, businesses and motor vehicles, etc);
  • Binding Financial Agreements;
  • Consent Orders;
  • Setting aside existing Court Orders;
  • Negotiations including mediation and litigating complex property matters involving trusts, businesses and companies, claims by third parties such as parents and other partners;
  • Advice in relation to all aspects of litigation;
  • Subpoenaing documents to gather necessary evidence;
  • Lodging of caveats to protect property rights; and
  • Urgent restraints and injunctions to prevent the dissipation assets.

> Watch Video Series | > Read Our FAQs

Property Settlement

What is the process for a property settlement?

A property settlement is the division of all of the assets and resources of the parties. This includes real estate/the family home, commercial/investment properties, any businesses and companies, motor vehicles, savings accounts, shares, superannuation, boats, caravans, trailers, horses or any other asset or resource either party owns or controls.

The Family Court undertakes what is commonly referred to as the ‘four step process’.

Step 1: Identify

Determining what is included in the asset pool to be divided between the parties. This includes identifying and valuing all the property and liabilities.

Step 2: Contributions

Determining each party’s financial and non-financial contributions. Financial contributions include gifts and inheritances, compensation payouts, redundancies, any rent free accommodation and the like. Non-financial contributions includes the care of children, household and domestic chores. There can be negative contributions known as ‘’wastage’’ such as excessive gambling, drinking or drugs.

Step 3: Future Needs

Assessing the needs of each party which includes a comparison of their income and earning capacity, any health issues which may disadvantage one of the parties financially, the care of the children which affects the ability to work long hours or obtain gainful employment at all and the length of the relationship itself.

Step 4: Just and Equitable

The last step involves a consideration of all of the above factors to work out what a fair settlement between the parties should be. In order words whether the property pool should be divided equally or whether one party should receive a greater share and what that greater share should be. 

Pearsons Lawyers can give you advice at your very first free interview, as to how all of these factors are relevant to your particular case and what you can expect by way of an overall settlement. By the end of the interview you will “know where you stand”.

Quick Links

> Federal Circuit Court: How do I apply for property & financial orders?

Contact Pearsons Lawyers Today and Know Where You Stand

"There is no other work we would rather be doing than practising Family Law.  We feel privileged to be doing this work and have the same passion about clients and their cases as we did over 35 years ago."

Binding Financial Agreements

Property Settlement Options

(A) Binding Financial Agreements cover 4 categories:
(i) Spousal support

An agreement can be entered into by both parties that neither of them will seek financial support for themselves from the other party. This ensures security with respect to ongoing financial support for your former partner. Alternatively, you can have a Binding Financial Agreement which makes provision for ongoing periodic financial support on a regular basis from your former partner but this is in rare circumstances and would be where your spouse is unable to work.

(ii) Property Arrangements

Binding Financial Agreements can finalise property arrangements between the parties where the option of having a Consent Order ratified by the Court is not available either because the parties choose not to have a Court seal or alternatively, the agreement is one which the Court would not approve because it is outside the range of what the parties could expect to receive from the Family Court. Sometimes entering into a Binding Financial Agreement can be quicker than a Court Order.

(iii) Pre-Nuptial

Binding Financial Agreements which are entered into in contemplation of a marriage or a de-facto relationship commencing are known as “Pre-Nups”. These agreements specify what happens in the event of a separation.

(iv) Binding Child Support Agreements

Binding Child Support Agreements are often prepared when parties want to formalise child support arrangements to include not only periodic child support as assessed by the Child Support Agency but but also may include other expenses such as:

  • Educational costs including school fees, books, uniforms and camps; and
  • Health costs including private health insurance, out of pocket expenses for medical, dental, orthodontal, chiropractic, osteo etc.
  • Extracurricular activity

These Binding Child Support Agreements can be registered with the Child Support Agency and can also filed with the Family Court.

(B) Consent Orders

Consent Orders finalise property matters between parties by way of a formal Court Application and minute of the proposed Orders sought by agreement.

Usually, one of the parties’ lawyers prepares the documents which are then signed by both parties and filed with the Court.

A Registrar of the Court reads the documents and makes an assessment as to whether the agreement is within the range of what the Court would normally expect.

The Court then seals the Orders without the need for either of the parties or solicitors to attend Court and the Orders are released. These Orders are final and they are enforceable and they remain on the Court file.

(C) The Judge’s Decision

Some parties are unable agree on the on the division of property between themselves despite negotiations between solicitors and/or mediation. In these instances, proceedings are issued and the matter takes its course in the Family Court or the Federal Circuit Court.

Mediation is a compulsory step in the litigation process. Approximately 80% of cases resolve at or before mediation.

In the event that the matter does not resolve at or before mediation the Court case will proceed to Trial. Each party and their witnesses give evidence and submissions are made.

After hearing all of the evidence and submissions the Judge, in due course, will normally hand down their decision. The timing of the handing down of the decision depends on the complexity of the case. The Judge’s decision is final and can only be appealed if there is an error in law.

Property Settlements

Complex Family Law Property Matters

Most cases involving the separation of assets can be relatively straight forward. There are those instances where cases are complex as a result of factors such as:

  • assets being owned in the names of or with third parties such as parents or siblings;
  • the existence of complicated company or trust structures;
  • inheritances/gifts and the timing of receipt;
  • assets being held overseas; and
  • the failure by one party to make full and frank disclosure of their income, finances and their assets.

Sometimes a matter is complex as a result of the personality of one or both of the parties where there may be inherent mistrust or a pattern of failing to cooperate.

The specialist Family Law team at Pearsons Lawyers have decades of experience. There is no case too complex for us to deal with.

We have the knowledge and we also have the numbers in our experienced team of lawyers to be able to deal with any case. We apply a team approach to deal with complex cases which means that cases are dealt with in a proactive, efficient and cost effective manner.

Video Series

Divorce & Assets

> Watch Full Video Series Here

Overview

Transcript

Welcome to Module 5 in the series: How to Get a Divorce in Australia. My name is Leanne Abela. I’m a Director and Partner of Pearsons, and in this module, we’re going to cover Assets. That is, the size of the cake that’s available for division between you and your partner and the slice you’re likely to receive. That is, what percentage of the asset pool can you expect.

Over the years, my experience has been that most people are really concerned about the financial consequences and fallout of a separation such as: ‘Will I be able to keep the family home?’ ‘What will happen to the superannuation?’ ‘How will the assets be divided and what’s included and not included?’

So, in this module, we have five videos that cover these topics. The five videos include this overview. In the next four videos, we cover what’s the size of the asset pool and what’s included in assets and liabilities. What are the relevant factors the law takes into account in deciding what your percentage is likely to be; that is, what are the contributions and what are the needs factors. Then, some of the most commonly asked questions and, in conclusion, what’s the percentage range you may expect. If you’re ready to proceed, then move on to Video 2: The Assets and the Liabilities.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at https://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you. Whatever it is that you choose, it is our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you ‘know where you stand’.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website

> Book Your Free Appointment

Assets and Liabilities

Transcript

Hi! Welcome to Video 2 of Module 5: Divorce and Assets. My name is Leanne Abela. I’m Partner and Director of Pearsons and if this is the first video you’ve seen in the series, I strongly recommend you go back to the beginning and look at all of our other videos in the series. This will give you a good opportunity to understand how we got to this point.

You can view all of those videos on either our Pearsons’ YouTube Channel or on our Pearsons’ webpage. If you’ve already looked at the series and you’re ready to begin, let’s start!

In this video, we’re going to talk about the size of the cake and the slice that you’re entitled to, that is, what is the asset pool and what is your percentage split. We start by looking at the ingredients in the cake, that is, what makes up those assets, what is their value and whose name are they in. So, let’s begin.

When you’re looking at the assets that are available for division between the two of you, you are looking at a whole range of assets and some people refer to them as property and confuse that with real estate. Property is a loose term that’s used for lots of assets, that is, all of the assets and resources that are available for division between the two of you.

What do these assets include? The matrimonial home, or the relationship home that the two of you lived in, regardless of whose name it’s in. You look at its current value and that is what it’s worth now. Now, most people don’t know what the value is. We’re not real estate agents, after all, so it’s a good idea to contact a few agents to get some free appraisals, as to what the property might be valued at if you were to sell it.

The next asset that’s looked at is other investment properties. Again, regardless of whose name those properties are in, they go into the pool, as long as they belong to one of you, or there may be a property that is not in either of your names, but in which you have an interest as a result of a trust or company structure. Again, have an agent look at the value of that property and give you a free estimate, either verbally or in writing, because this is information that you can take with you, either to a solicitor or to assist you in making your own calculation.

Other assets include vehicles, either in your own names or in the company name, regardless of who’s driving them. Most people determine the value of their vehicles in two ways: you can either go to a car trader and ask for its trading value or sale value or most people just do a Glass Guide or Redbook valuation.

You also look at bank accounts, that is, joint accounts, individual accounts and also accounts in the children’s’ names. Now, for some reason, people think that the accounts in the childrens’ names shouldn’t be included because they belong to the children, but, in fact, the children have not worked to save those funds and so those funds have to be included into the asset pool.

In most cases, parents decide that those funds should be quarantined and kept for the children, themselves, when they reach a certain age or for their education, but, technically, they do fall into the asset pool unless people agree between themselves. So, you should have that information with you.

Other assets include collections: stamp collections; art collections; memorabilia, which is quite popular these days. They all have a value and though you may not know the value, you need to include them in the asset pool and they can be valued by a reliable source, later.

Furniture is also included, but, generally, unless it’s valuable antiques which are certified, you simply divide the furniture between yourselves, doing an item by item separation. Very rarely is the actual value of the furniture taken into account.

Often, there are businesses or companies, which have a goodwill value and also an asset value and the assets might include company vehicles, computers, stock and equipment that also needs to be taken into account. Generally, it’s very difficult for the parties, themselves, to determine the value of that company or that business, but, if needed, an appropriate forensic accountant can do the valuation of those assets.

The other resource which is taken into account, which is sometimes seen as an asset rather than a resource, but, in fact, the law says it’s a resource, because neither of you can use it, spend it or borrow against it, is superannuation funds. So, it’s important that you’re both aware of your respective superannuation funds: old ones, new ones, current ones and the current value of those funds.

Generally, what happens with superannuation funds is that they’re split, or divided, so that half of the difference in the values of your superannuation funds are transferred to the other person’s superannuation. So, at the end of the day, you both have an equal amount of superannuation in your superannuation fund. Now, that of course, is a generalization for a long marriage, where there are children, etc., but it’s often the most popular way of dividing that superannuation.

That is the range of the assets which are taken into account when you first look at what there is to divide. Then, of course, you must look at the other side of the ledger, which consists of liabilities. So, foremost, are usually mortgages. They’re a large part of the liabilities people have.

What’s important to look at is this: where are the mortgages parked? Against the matrimonial home, against the business, against the investment property? It’s good to determine that and, also, to determine what are the current balances. So, if you have a list of that, that needs to be set out on a ledger.

The next set of liabilities are usually personal loans to financial institutions or banks; credit card liabilities, regardless of whose name they’re in; debts to family members or friends, that is, personal loans taken out for either building purposes or day-to-day expenses. Sometimes, those personal loans are set out in a loan agreement, and often they’re not, but there is a clear pattern of debts being paid on a continual basis to reduce that loan, so evidence that that loan has been repaid. If not, it’s still worthwhile bringing up that loan.

Other liabilities can include school fees, medical expenses that are unpaid, unpaid household expenses and any other debt or liability, such as taxation liabilities or capital gains tax. If you’re armed with all that information, you can clearly present a ledger that has all of your assets on one side and an estimated value of those assets, now at the time of separation, and a list of liabilities, again, now at the time of separation.

What you do need to know, however, is that when you are doing a property settlement, it’s the value of those assets at the time of settlement that is taken into account, not at the time of separation. So, for example, we did a case recently, where the parties had separated 20-30 years earlier and, for some reason, had not done their asset division or property settlement.

They’d gone along, living their lives thinking that everything was sorted because they’d reached an agreement at the time, but, as one of the parties was approaching death, she wanted to be satisfied that everything was in order and, in coming to see us, she asked what her entitlement would be. She was quite shocked to find that you would actually look at the value of the matrimonial home she had occupied all this time on it’s current value, not the value when she separated.

Now, there are other factors that come into account and she’d be given credit for her contributions made to that property in all those years, but again, it’s the value at the time of settlement, which is often another reason why you should try to do your settlement as close as possible to separation. It’s, in fact, easier to un-scramble that egg after you’ve just made it.

So, hopefully that gives you the list of assets and liabilities that you can put on the ledger, to determine the size of your asset pool, or the size of the cake that you’re dividing. In the next video, I’ll be giving you the factors that you need to be aware of, which will determine the size of the slice that you are getting, that is, what is your percentage split going to be.

If you’re ready to move on to the next video, go on to Video 3, which is The Relevant Factors That Are Taken Into Account in Module 5.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at https://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

> Book Your Free Appointment

How to Divide Assets

Transcript

Welcome to Video 3 of Module 5: Divorce and the Assets. My name is Leanne Abela. I’m a Director and Partner of Pearsons and if this is the first video you’ve seen in the series, I strongly recommend you go back to the start, so that you’ll fully understand how it is that we got to this point and what the relevant factors are.

You can look at any one of our videos on either our Pearsons’ YouTube Channel or on our Pearsons’ webpage. Now, if you’ve already seen all of the videos leading up to this point, you’re ready to begin.

In this particular video, we are going to look at the relevant factors that are taken into account in deciding your percentage split, or, that is, the slice of the cake you’re going to receive.

From a technical point of view, there are two sections of the act that are relevant and I’m going to mention them to you, just in case you’ve heard them before or you come across them in the future. So, the first is Section 79-4 of the Family Law Act.

What does that mean? Section 79-4 relates to the contributions, which are relevant, when you’re thinking about how the assets should be divided.

So, what are the relevant contributions or what does the law look at? General overview of this section, because, of course, every case is different and every fact situation is different and you need to be aware of that and that is where your lawyer can give you assistance in weighing up how valuable that contribution is.

But, from a general point of view, the items that are looked at are these: your prior contributions, that is, before you entered your relationship, that is, living with your partner, or sharing finances. What did each of you have? Did one of you have a house? Did one of you have savings? Did one of you have superannuation? Assets prior to the relationship.

The next category would be special contributions during the relationship. Now, what can this consist of? The unusual lump sums that have come into the relationship, that are not as a result of the income that either of you earned.

So, regardless of income, was there an initial contribution, or special contribution, during the course of the relationship, as a result of an inheritance, a compensation claim, sometimes a redundancy, a gift or loan of money from family or friends, a windfall or an interest-free loan, or something of that character?

It’s important that you know the amount and the date it was provided and what happened to it. Was it spent on a trip overseas? Has it been whittled away or has it been spent on day-to-day living expenses or on a mortgage or reduction of debt or renovation or the purchase of a property? Or is it quarantined and in a separate bank account? These are the things you need to know and they will affect the percentage split.

The second factor determining the division of the assets is Section 75-2 of the Family Law Act, or what’s referred to as needs.

What are those needs that affect this percentage split that each of you will receive? Well, again, there’s a range of factors. They’re covered under the Family Law Act and the weight that each one is given will really depend on your particular case. There are, however, some general principles which apply.

For example, needs are affected by who the children live with, how old are those children, do they have disabilities, do you or your partner have disabilities that will affect your ability to work in the future, is there an income earning disparity, does one of you earn much more than the other and what is that disparity.

That’s also relevant to the percentage split. Has one of you carried out any wastage during the relationship? That is, excessive gambling, excessive drinking, drug abuse, where the funds have gone out, which should have been
retrieved during the course of the relationship.

Other special needs that are taken into account: there are needs in relation to people that you have to support, other than your own children, your ability to recover after a separation, the size of the pool. The smaller the cake is that you’re dividing, the more cake you’re going to receive if you have a lower income earning ability, dependent children or disability.

The larger the cake, the more likely it is that there’s enough for each of you to be quite full and to be satisfied with the percentage split, to re-house and move forward. Therefore, the percentage disparity between you in that split is likely to become closer and not as extreme.

The maintenance that’s been paid is a relevant factor. Are you going to be receiving child support, if you’ve got the children or are you unlikely to receive child support? So, will you have the complete financial responsibility of raising these children?

Other expenses, such as private school fees, etc. are the topic of another video in this series and so I strongly recommend you follow this series until you get to that point. So, these are some of the general and most common factors that are taken into account when you’re looking at how the percentage split should occur.

If you’re now ready to move on to the next video in the series, we’re going to cover some of the most commonly asked questions in property matters. So, if you’re ready to move on, please go to Video 4, on Module 5, that is in
Divorce and Assets. Bye for now!

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at https://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

> Book Your Free Appointment

FAQs

Transcript
Hi! Welcome to Video 4, of Module 5: Divorce and the Assets. My name is Leanne Abela. I’m a Partner and Director of Pearsons Lawyers and if this is the first of the videos you’ve seen in the series, I’d recommend you go back to the beginning and have a look at all the videos in our series, so that you can see how it is we’ve got to this point and what the relevant factors are.

Now, you can look at all of our videos on the Pearsons’ YouTube Channel or on the Pearsons’ webpage. If you’ve already done that, then you’re ready to begin.

In this video, we’re going to look at the most commonly asked questions in property matters, or questions people come in and ask us, when they’re not sure what the relevant matters are in their property case or how they should now act or what they should discuss with their partner.

So, what are some of those commonly asked questions? Well, in the thousands of cases that we’ve done, we find that one of the first questions that people ask is, “When should I start? When should I start to look at the assets and what I should divide? Should I wait 12 months? Don’t I have to wait 12 months to get a divorce?”

Well, this is a bit of a misconception. You only have to wait 12 months to get your divorce, but, in fact, most people do their property division before they’re divorced. When can you do your property division? Immediately. You can do it as soon as you are ready to divide the assets.

So, we’ve already discussed what those assets are. With that information, you now know that you can start obtaining your evaluations and start talking to your partner, or through your lawyer, how you will divide those assets. There’s no need to wait.

Another question, which is commonly asked, is, “Who gets to keep the family home?” Well, although there’s not one definitive answer, in most cases, the person who has the primary care of the children, or the substantial care of
the children, gets first choice at keeping the family home.

Of course, they don’t get it for free. They’re going to have to pay for it and it’s going to be taken into account in the entire asset division, but, if between two of the parties, only one of them can have the house and they both want it, it’ll be the one who has the care of the children.

So, what happens if there are no children and both parties want the property? More often than not, it’ll be put to sale or auction and both of the parties can bid for it.

Another commonly asked question is, “What happens to the kids’ accounts? Surely, my partner won’t take that into account in the ledger!” Well, unless your partner agrees, children’s accounts are taken into account and included in the asset pool.

However, in my experience, it’s more often common for people to say, “Look, let’s exclude them and use them for the children’s education or give them to the children, once they reach a certain age, maybe to buy their first car or to travel or as a kick-in to their HECS fees or something.” This is a matter that the parties can agree upon, but if they don’t, it’ll be included in the asset pool.

Another question: Do I have to go to court? Well, the answer is no, you don’t have to go to court. Parties can often reach a resolution themselves and either finalize that in a binding financial agreement or in consent orders, which are mailed to the court or delivered to the court and approved, without you or your lawyer having to go to court. It’s a very quick, efficient and very inexpensive process but it gives you the security and peace of mind that the orders have been ratified by the court and that there’s no comeback in the future.

You can look at further videos in our series, that will explain to you the difference between a binding financial agreement and a consent order and that will tell you the different processes available to try to settle your
case, or to give you your final conclusion.

That’s it for this video, so if you’re ready to proceed, move on to Video 5, where we’ll give you a range of the percentage split you can expect to receive.

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at https://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

> Book Your Free Appointment

Calculating Your Entitlement

Transcript
Hi! Welcome to Video 5, of Module 5: Divorce and the Assets. In this video, we’re going to give you a broad range idea of the percentage split you’re likely to receive, when dividing your assets. Now, if you’ve already seen
Video 3, you’ll know what the assets and liabilities consist of and you’ll be in a position to have a rough idea of how it is the court determines, or the law determines, what the percentage split is you’re likely to receive.

You’ll also, by now, be aware of the relevant factors and, of course, as I’ve said previously, what differentiates one case from another is the weight that’s given to those factors. However, we can give you some rough idea, in common cases, as to the scenario you can expect.

So, for example, in a common house and garden case, where the assets consist of the matrimonial property, or the relationship property that the parties lived in, which is subject to a mortgage, and where there are vehicles and some superannuation, and perhaps there are two or three children, who are under their teenage years, and you can expect that perhaps one of the parties has been pursuing their career and earning a reasonably good income, whilst the other party may have been working either part-time or not at all, not earning an income, or earning a part-time
income.

Then you’ve got some of those relevant factors that we’ve already discussed such as, income earning disparity, inability to recover quickly, and the care of young, dependent children and that will, of course, affect the number of hours somebody can work and the financial burden.

In those sorts of cases, you can generally expect that the person who has the primary care of the children, or substantial care of the children, will end up with more than 50% of the asset pool, that is, of course, if the
contributions prior to the marriage, in lump sums, and during the marriage, except for income, were equal. So, generally, that range could be maybe 60%, or 65%, perhaps, depending on the skill level of the person caring for
the children and their ability to work in the future. Also, depending on the child support, which is being paid. So, that’s one of the most common scenarios.

In other scenarios, for example, where there are no children and it’s been a long relationship, you can expect, perhaps, a 50/50 split, if there have been no special contributions, by way of inheritances or compensations. So,
regardless of the income each of you have earned, the split could still be 50/50, because of the length of the relationship and time you’ve lived together, the fact that there are no children, and the asset pool size.

In other instances, for example, second and third marriages or Defacto relationships, often the asset division is somewhat different, because, clearly, one of the parties may have bought more into the relationship, as a result of having been in a previous relationship or, it could be that both parties have moved into one of the party’s houses. In
those instances, your percentage split for the person who’s into the relationship with far less could be far less by way of percentage split. For example, perhaps 10%, 20% or even 30%.

So, that gives you an idea of the range of possibilities and, as I said earlier, every case is different as to the weight given to the factors. So, whilst the formula will be the same in terms of the assets and liabilities
are relevant, the formula as to what weight is given to each of those contributions factors and needs factors varies from case to case. You put all of them into a mixing pot and that helps you achieve the percentage
split.

That’s it for Video 5, of Module 5: Divorce and the Assets.

So, by now, you’re probably thinking, “how much is this going to cost and how long will it take?” Well, that will be answered in Module 6: Divorce, Costs and Fees. So, if you’re ready to proceed to Module 6, then move straight ahead. Bye for now!

All our videos in this Youtube series can be found through the Pearsons Youtube Channel at http://youtube.com/pearsonslawyers or by visiting the Pearsons website at https://pearsonslawyers.com.au and following the links.

Alternatively, if you know that its simply time to see a Family Lawyer, please contact us for a free initial consultation. Please be advised that we must complete a conflict check so that we can only represent one party in a Family Law matter. So if your partner is watching this same Youtube series and engages our services before you do, we advise that we may not be able to talk to you.

Whatever it is that you choose, its our wish that throughout this Youtube series, you can finally gain a sense of certainty so that you know where you stand.

LEGAL DISCLAIMER

No advice
This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties
The legal information on this website is provided “as is” without any representations or warranties, express or implied. Pearsons Lawyers Pty Ltd makes no representations or warranties in relation to the legal information on this website. If you have any specific questions about any legal matter, you should consult Pearsons Lawyers Pty Ltd or another professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

> Book Your Free Appointment

Know Where You Stand

Book Your Free Appointment

During your initial free consultation we will:

  • Discuss your circumstances.
  • Answer any questions about the divorce process.
  • Discuss your options.
  • Advise you of your entitlements.
  • Provide you with information about the cost of a divorce and separation.

Call our office or fill in the contact form to book your free appointment.

Office Hours

Monday to Friday 8:30am – 5:00pm
(Please note we are closed between 1-2pm)

Wednesday Evenings 5:00pm – 7:00pm
(by appointment only)

> Office Locations

> Call 1300 699 688

Get Your First Appointment Free

Know Where You Stand
Frequently Asked Questions
Hidden First Field

Your content goes here. Edit or remove this text inline or in the module Content settings. You can also style every aspect of this content in the module Design settings and even apply custom CSS to this text in the module Advanced settings.

What is property?

Often people think of houses, cars, shares and bank accounts as property.  Property also includes interest in businesses, loan accounts in trusts, the right to sue another person for damages and superannuation entitlements.

The definition of ‘’property’’ for the purposes of the Family Law Act is extremely broad and is essentially anything of commercial value.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

When can property be divided?

Property can be divided at any time and there is no requirement that the parties be separated or divorced.

For couples that are married, they have twelve months from the date that their divorce becomes final to finalise their property settlement or commence Court proceedings.  If the twelve months expires, they then need to obtain permission from the Court to resolve their property matters. 

De facto couples have two years from the date of their separation within which to finalise property matters without obtaining permission from the Court.

It is imperative that property matters are resolved as quickly as possible after separation.

The experienced Family Law team at Pearsons Lawyers can advise you about your options including the possibility of obtaining permission to commence Court proceedings for a property settlement or spousal maintenance after the time has expired.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

How do we divide our property?

In the vast majority of cases parties are able to reach agreement either through negotiations directly between themselves, with the assistance of a lawyer or with mediation with or without lawyers.  If agreement can be reached it can then be formalised relatively quickly.

If agreement cannot be reached Court proceedings may need to be commenced.  Part of the Court process is compulsory mediation.  Most cases resolve at some stage during the litigation process and often at mediation after there has been an exchange of relevant financial document, identification of property and all the necessary property having been valued.

If the parties cannot reach agreement then the Court will hear the evidence and it will decide how the property is divided.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

Is superannuation property?

Superannuation is property and is divided between separating couples the same as other property is.

Superannuation is treated as property under the Family Law Act as it is valuable. It is different to other property such as a house because it cannot be mortgaged, sold or otherwise used for benefit today.  It is a future “nest egg” known as a “financial resource”.

Superannuation entitlements can be substantial, sometimes running into the hundreds of thousands or millions of dollars. Superannuation is accumulated in Industry Funds and increasing in self-managed Superannuation funds.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

Hidden First Field

Your content goes here. Edit or remove this text inline or in the module Content settings. You can also style every aspect of this content in the module Design settings and even apply custom CSS to this text in the module Advanced settings.

What does it cost to get a property settlement?

Most lawyers charge by the hour.  Depending on the experience and skill of the lawyer their charge per hour will vary.  Most lawyers will be able to give an estimate of the cost that it will take to document a property settlement. Costs will vary depending upon complexity of the matter.  

It is important that a lawyer informs the client about the costs that they are incurring throughout the process so that they are at all times aware of the costs and where they stand.

At Pearsons Lawyers we will advise of our costs at the FREE initial interview and throughout the process. Our fortnightly itemised accounts provide transparency.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

Do I need to document the property settlement?

In most cases separating couples engage lawyers, reach agreement about the division of property and have that agreement formalised and documented so that there is no dispute in the future.

Sometimes couples reach an agreement between themselves, sell property and divide money between them without having the agreement documented and formalised. This is extremely risky as several years later there may be a significant change in either parties’ financial circumstances and a further adjustment of property may be sought by a party when the other party thought that everything was finalised.

These delayed settlements can become complex and add unnecessary costs. It important to obtain advice from our team at Pearsons Lawyers upon separation and have any agreed property division properly documented.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

How is a property settlement documented?

If the parties can reach agreement they can complete forms and file them with the Court and provided that the property settlement is proper a Court officer known as a Registrar will make orders without the need for the parties to attend Court.  These are called consent orders and are relatively quick and inexpensive.

Alternatively, the parties can document their agreement by way of a financial agreement.  This is a contract under the provisions of the Family Law Act and sets out the terms of the agreement to finalise property and/or spousal maintenance matters between the parties.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

Do I need a lawyer to finalise property matters?

There is no mandatory requirement for separating couples to engage a lawyer to finalise their financial matters except for Binding Financial Agreements.

If financial matters are resolved by way of a Binding Financial Agreement, the parties must engage separate and independent lawyers who sign certificates that they have provided their respective clients with legal advice. 

If a property settlement is being documented by way of Consent Orders parties do not need to engage lawyers. However, engaging a lawyer is highly recommended to ensure that all of the relevant property is considered, to help negotiate a property settlement and to have the agreement properly documented.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.

"Being a well established firm Pearsons were able to provide me with all the relevant information required throughout the process.  If you require any legal assistance I would strongly recommend Pearsons as their professionalism makes it easier during trying circumstances."

⭐️⭐️⭐️⭐️⭐️ Kevin, Melbourne