How is a property settlement calculated in a divorce?

author
Emma Maxwell
read time
3 minutes
date
August 2, 2022
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Part 1 – How do I get a property settlement?

If you separate from your spouse or de facto partner in Australia, there are four main ways property can be worked out between you.

 

One: Private Agreement (or, no, please don’t do this):

The first way, is that the parties simply come to an agreement between them, split the property and go their separate ways.

We really, really (really!) don’t recommend that you do this.  And not just because we’re lawyers.  But for multiple reasons including:

  • the other party can come back and try and get another slice of the pie later on (often when they have a new partner, or friend or family member in their ear);
  • it doesn’t allow for a superannuation split;
  • there may be tax and duties consequences;
  • you may remain liable for a debt of the other party (even the ones you may not know about); and
  • you may simply be getting a bad deal.

 

Two: Consent Orders:

This is where the parties reach an agreement and have it formalised by the Court as a binding Court Order.  This is a relatively straightforward administrative process once the parties have reached agreement and, if the Court is satisfied that the agreement is just and equitable, the Court will make the Orders.

This is, in our view, the very best way for parties to deal with their property matters.  Obtaining consent orders doesn’t mean that you are “lawyering up” but just that you want your agreement to be both fair and binding.

It also means that superannuation can be split between the parties and you will have some comfort that the Court thinks your agreement is fair.

 

Three: Binding Financial Agreement (or BFA):

We think of BFAs as “pre-nups” that are made after the breakdown of the relationship.  BFAs are binding on the parties but can often be more expensive as both parties need their own, independent lawyer to sign off on the agreement to confirm that the parties have both had legal advice.

Our view is that if you can obtain Consent Orders then you should, and that BFAs often mean that one party isn’t getting such a great deal (as the Court won’t make the Orders).  Still, BFAs have their place and we’re happy to discuss them with you.

 

Four: Litigation:

This is where you go to Court and the Court decides what an appropriate property division between the parties should be.

We would really like to keep you out of Court if we can – it’s expensive (and the money in the asset pool is better spent on your family and starting your new life), it’s time consuming (it can take over a year to get to Trial with multiple Court events in between) and it’s stressful.

That said – sometimes it’s the only option.

 

Here at Anchored Family Law, we can help you with all of your options – whether that be Consent Orders, BFAs and Litigation … or even some preliminary advice about option one.  Contact us today via email at hello@anchoredfamilylaw.com.au or on 03 7067 8496.