Property Settlements

“My family law matter was made much easier due to the compassion, honesty and support I received from the staff at Duffield & Associates and I thank you all very much.”

Kym,
Rockhampton

At Duffield and Associates Solicitors, we understand that determining what you are entitled to receive in the event of separation can be a very daunting and emotional experience.

We can help you by advising you on what you are entitled to receive, how to make sensible settlement proposals, and when it may be necessary to proceed to court.

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The process

The Family Law Act 1975 sets out the process to determine how property will be divided for married, de facto and same sex couples. Pursuant to the duty of disclosure, each party must make full and frank disclosure of all of their financial circumstances, including property owned by the parties either personally or jointly must be considered when determining the net property pool to be divided. Property can include, property acquired prior to marriage or commencement of relationship, property acquired during the relationship and property acquired after separation (depending on how this property is acquired).

In accordance with the case of Hickey (2003) FLC 93-143, the steps to be taken when determining a property dispute, are as follows:

  1. The first step is to identify and value the property, liabilities and financial resources of the parties;
  2. The second step is to assess the financial and non-financial contributions both parties have made during the relationship.
  3. The third step is to assess whether or not an adjustment should be made for the future needs of one or both of the parties. Adjustments may be made in favour of one party in circumstances where one party earns more income than the other party, the age of the parties, the health of the parties, care of children of the relationship and the extent to which the duration of the marriage has affected one party’s earning capacity.
  4. The fourth and final step is for the court to determine whether this division of assets is just and equitable in all of the circumstances.

Married Couples

An Application for property settlement must be made within 12 months of obtaining a divorce order. Otherwise, it may be necessary to seek the leave of the court to institute property proceedings.

De Facto Couples

Persons in a de facto relationship who separated after 1 March 2009, come within the jurisdiction of the Family Law Act and have the right to make an application for property settlement if they satisfy certain conditions, including living together, or having children, or by making a significant contribution to the other party’s property during their relationship. To be in a de facto relationship, you do not necessarily have to have been living together for a period of two years. If you separated prior to 1 March 2009, you are not within the jurisdiction of the Family Law Act, but are entitled to make a claim under the Property Law Act in Queensland.

Binding Financial Agreements and Pre-Nuptial and Co-Habitation Agreements

Prior to marrying or moving in together, parties may wish to clearly define how property will be divided should the relationship breakdown. We can assist you with drafting such an agreement.

Financial agreements were introduced in 2000 as a means of enabling couples to opt out of the court jurisdiction to deal with property and spousal maintenance under VIII of the Family Law Act. The jurisdiction of the court ceases to apply once a financial agreement is made. However, the court does retain its power to set aside such agreements should they be made obtained by fraud, made for the purposes of defrauding another person, the agreement is void or unenforceable or circumstances have arisen that such an agreement is now impracticable to be carried out.

Some very useful family law resources

Making smart decisions in relation to family law matters generally, relies on both having an understanding of where your circumstance fits in the family law process and acting quickly in seeking specialist legal advice.  To assist you better understanding family law, we recommend that you download our Family Law Checklist.

DOWNLOAD OUR FAMILY LAW GUIDE