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Property Settlement



When considering divorce, it is important to keep in mind that the division of property is not determined within a divorce but must be applied for separately. 

Often there is some doubt as to what exactly what you are entitled to and how to defend your rights when your interests in property are in dispute. For example, questions often arise as to what will happen to the jointly owned home, investments and inheritances as well as issues around unequal superannuation benefits.

It is here where accurate, fast and reliable advice is vital. Our team of highly motivated professionals will share and guide you to achieve a fair and just settlement. Legal First Solicitors Barristers prides itself on its ability to give you confidence at this difficult time to ensure that your rights and the rights of those closest to you are protected. This area of law can be quite complex but our team will guide you through the step by step process that removes the guesswork and confusion (and at times misconceptions) regarding your entitlements.

Property, as it is broadly defined includes assets that either party came into the marriage with and was used for family reasons and purposes during the marriage. The main objectives of the court in determining a property settlement under the Family Law Act 1975 (Cth) are to: “finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them” (s 81 FLA).

This generally involves a four step process:

Step 1: Identifying assets, liabilities and financial resources

A statement of the family’s assets and liabilities is prepared for the family as a whole, regardless in whose name a particular asset may be. In ascertaining the net assets, valuation or appraisals of the worth of various properties is needed as well as full disclosure of both parties’ finances. A separate statement is prepared for superannuation, because superannuation is regarded as a future asset.

Step 2: Assessment of each party’s contributions

The next step is to assess both the financial and non financial contributions of each party to the marriage. The law indicates that contributions as parent and homemaker are given real value, such that a major breadwinner and the parent/homemaker are likely to be seen to give equal contributions. Initial contributions such as someone who has financially brought more to the relationship from the beginning, or if one has been given parental assistance or received an inheritance will also be relevant in assessing contribution. It is also important to note that contributions can be negative, and allowances can be made if one party has wasted family funds, has been a problem gambler etc.

Step 3: Future Needs

The next step is to assess the future needs of both parties, taking into account whether adjustments need to be made to the party contributions based on future needs and responsibilities. Factors include:

  • Ongoing Primary care of children
  • Age
  • Health
  • income earning capacity
  • the property of each party

Step 4: Practical Effect

The final step is to consider the practical effect of any proposed settlement, to achieve a result which is just and equitable in all the circumstances. The court now has the power to split superannuation entitlements between separating spouses. The fourth step of the process will sometimes include a consideration of the appropriate blend of any settlement between immediately available assets, and deferred but important benefits such as superannuation.

There are no mathematical formulas for working out what the result will be and, because of this, it is not possible for anyone to predict with absolute accuracy what the outcome of such proceedings will be. The best advice is based in lawyer’s knowledge of reported cases and their own experiences of cases. At Legal First Solicitors Barristers, our wealth of experiences with family law matters helps us to help you obtain the best outcome possible.

Please call us on (02) 9824 3884 to discuss your personal situation and one of our experienced family lawyers will assist you in the right direction.