Separation is one of life’s most challenging experiences, bringing not only emotional stress but also financial strain. If you have to go through a legal process, it can become a source of legal stress. To navigate this, it is important to seek legal advice on time. At Shan Lawyers, we take the time to listen to your situation, explain your options in simple language, and provide clear legal advice tailored to your circumstances. With a balance of compassion and strong legal expertise, we help you protect your interests and achieve a fair outcome.

1. What Is Property Settlement?

The term “property settlement” in the family law context refers to the process of dividing the assets, liabilities, and financial resources and superannuation of parties following the breakdown of a marriage or de facto relationship.

The property pool may include:

• • The family home

• • The holiday home

• • Investment properties

• • Stridhana (Jewelery/property/shares gifted by your parents or family members)

• • Wedding ring

• • Mangal sutra

• • Cars, jewelery, and personal belongings

• • Shares, Crypto, Stocks

• • Business interests and Family Trust

• • Superannuation and Self Managed Superannuation Funds

• • Mortgages, personal loans, motor vehicle loans, and other debts

2. When should I start the property settlement process after separation?

Clients frequently ask when they can begin the property settlement process. You may commence property settlement negotiations as soon as you have decided to separate. However, it is important to be aware of the legal time limits set out in the Family Law Act 1975 (Cth).

For married couples: An application to the Court for property settlement must generally be made within 12 months of the date the divorce becomes final.

For de facto couples: The time limit is two years from the date of separation.

The appropriate timing for property settlement will depend on your individual circumstances. It is advisable to begin the process as soon as possible, as delays may impact your legal rights, particularly if the value of assets or liabilities changes over time.

The first step should be to consult a family lawyer to obtain clear legal advice tailored to your situation. Early advice can help ensure your interests are protected and that you comply with all relevant time limits.

3. How Does the Court Decide?

If parties cannot reach an agreement, the Court follows a four-step process:

a.   Identify and Value the Property Pool
All assets and liabilities of both parties must be fully disclosed and accurately valued. This includes property, savings, superannuation, investments, vehicles, and any debts.

b.   Assess Contributions
The Court will consider both financial contributions (such as income, savings, and assets brought into the relationship) and non-financial contributions (such as caring for children or homemaking) made by each party during the relationship. Any post-separation contributions from the parties

c.   Evaluate Future Needs
The Court takes into account factors such as each party’s age, health, income-earning capacity, care of children, and overall financial resources when determining a fair division.

d.   Achieve a Just and Equitable Outcome
The final step is to ensure that the division of property is just and equitable, meaning it is fair to both parties in all the circumstances.

4. Is It Necessary to Go to Court for a Property Settlement After Separation?

No, it is not necessary to go to court for a property settlement after separation if you and your partner or spouse can reach an agreement through negotiation or mediation.

Reaching an Agreement Without Court

In such cases, you can formalise your agreement by:

Consent Orders: These are orders made by the Family Court with the consent of both parties, making your agreement legally binding and enforceable.

Binding Financial Agreement: This is a private agreement between the parties, prepared in accordance with the requirements of the Family Law Act 1975 (Cth), which can also be legally binding if properly executed.

Court proceedings are only required if you and your partner or spouse are unable to reach an agreement and require the Court to determine the division of property. In that situation, either party may initiate proceedings for the Court to make a decision.

It is generally preferable to resolve property matters by agreement, as this can save time, costs, and stress.

5. How Long Does Property Settlement Take After Separation?

The duration of a property settlement can vary significantly depending on the circumstances of each case. For example, a property settlement may be finalised in as little as three weeks if the parties reach an agreement quickly and the asset pool is straightforward. However, in more complex matters, particularly those that require court intervention, the process can take up to three years or longer to resolve.

The timeframe will depend on factors such as the complexity of the property pool, the level of cooperation between parties, the need for valuations or expert reports, and whether court proceedings are necessary.

6. What Happens If We Cannot Agree on Property Settlement?

If you and your former partner are unable to reach an agreement on the division of property, either party may apply to the Federal Circuit and Family Court of Australia for a determination. The Court will then consider all relevant evidence and make orders for the division of assets and liabilities in accordance with the principles set out in the Family Law Act 1975 (Cth).

7. Is Superannuation Included in Property Settlement?

Yes, superannuation is included in the property pool. It can be divided between parties.

8. What Should I Do First After Separation to Protect My Property Rights?

If you are going through a separation, it is essential to seek legal advice as soon as possible. Contact Shan Lawyers today for clear, practical guidance on your property settlement options. We are here to help you move forward with confidence.

Why Choose Shan Lawyers?

At Shan Lawyers, we understand that property settlement after separation is not only about numbers but about your future stability and security. We combine strong legal knowledge with empathy and cultural awareness to provide tailored advice for every client. We aim to protect your interests and guide you towards sustainable solutions.

Consulting a legal professional with expertise in family law and financial investigations is highly recommended.  If you would like to discuss your unique circumstances, please do not hesitate to contact Shan Lawyers at (+61) 3 8589 2762 or by email info@testshan.ahattrickz.com

About the Author

Thirumalai Selvi Shanmugam

Thirumalai Selvi Shanmugam is the founder, and Director, and Principal lawyer at Shan Lawyers and is a leading family law specialist in Australia whose expertise is often sought by organisations and the media.