PROPERTY SETTLEMENT

An Overview

Whether you are married, living in a defacto relationship or a same sex relationship, the same "four step process" applies to working out how your property should be divided. If you are married the rules that apply are set out in  Part VIII of the Family Law Act . If you are in a de facto or same sex relationship and you separated on or after 1 March 2009, the rules that apply are set out in Part VIIIAB of the Family Law Act.

If you have never been married and you separated before 1 March 2009, then your rights, entitlements and responsibilities in relation to property settlement are set out, in Queensland, in Part 19 of the Property Law Act. In some other States in Australia the rules in relation to defacto and same sex couples are different. The majority of States however have adopted the Family Law Act regime. If you are outside QLD you should check which law applies to you.

The Queensland Property Law Act (which may apply to defacto couples who separated before 1 March 2009) has the same basic principles of the “four step process” that is applied to people who are married in order to work out what a just and equitable division of property entitlements should be. There are however some important differences, the main areas are those of spousal maintenance and superannuation.

Superannuation is, however treated differently depending on whether you separated before or after 1 March 2009.

	The four step process
	Protecting assets
	Companies, trusts, partnerships and the involvement of third parties
	Superannuation

The four step process

Whilst there is no mathematical equation that we can apply to determine what division of property is “just and equitable” on the breakdown of a marriage or a defacto relationship there is a fairly clear 4 step process to follow.

1st - We need to identify and value the assets of your relationship. When you instruct us you will need to give us as much detail as you can about your assets and liabilities, whether those are in your name, your spouses name, or a trust or a company name.

2nd - We need to determine what financial and non financial contributions each of you have made to the build up of the assets and liabilities of your relationship. You will need to give us information about such things as assets and liabilities each of you had at the beginning or your relationship, any inheritances, gifts or other lump sums either of you have received as well as your employment and care for you family and children.

3rd - We will need you tell us about your respective earning capacities, your state of health and that of the children, the number and ages of the children and how they are to be cared for and a range of other facts that might give us some insight into your future needs.

4th - We will need to primarily look at how any settlement might be structured to ensure that the outcome is a just and equitable one. We will need you tell us whether, for example retaining your home is more important than retaining a large amount of superannuation, or visa versa, or a whole range of other issues around which assets are to be retained, which are to be sold and which are to be shared in some way in order to achieve a result that is just and equitable for both parties.

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Protecting assets

We are often asked by clients about options to protect assets that are in the control of one spouse only. A concern about assets being sold, transferred or dealt with in a way that diminishes their real value is a common one. There are a variety of options available to address these concerns and ensure assets are protected during the negotiation or Court process. The most important thing you can do is to ask for our advice and assistance as early as possible and provide us with as much information as you have about the potential dangers. We will give you immediate and practical advice about what you can do to best protect your assets so they are available for division as intended by the legislation. Back to top