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Property Settlement FAQs

Catherine Henry Lawyers
Catherine Henry Lawyers

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Property Settlement FAQs

When can I do a property settlement?

You can do a property settlement at any time following separation.  If you get divorced, you have 12 months from the date of divorce to commence proceedings before the Court for property settlement.

Outside of this time both parties must consent, or you must seek leave of the Court to commence proceedings.  You will need to prove that hardship would be caused to either party or a child of the relationship, or that one party was unable to support themselves without a means tested pension at the end of the limitation period (for a spousal maintenance claim).  You should not assume that leave will be granted.

If you were in a de facto relationship you have 2 years from the date of separation to commence proceedings before the Court for property settlement.  Outside of this time you must seek the leave of the Court proving that hardship would be caused to either party or a child of the relationship, or that one party is unable to support themselves without a means tested pension at the end of the limitation period (for a spousal maintenance claim).  You should not assume that leave will be granted.

Can I still do a property settlement if everything is owned in my spouse/ex-partner’s name?

Yes.  It is irrelevant whose name an asset is owned in when doing a property settlement.  If an asset is only owned in your ex’s name and you are concerned that they may sell the property, you may be able to take action to protect your interest.  Contact us for further information.

What if I want to sell the house, but my ex doesn’t?

You cannot force your ex to sell the house if it is owned in both names.  Only the Court has the power to do this.  You could negotiate or attend mediation to sort out this issue.

My ex moved out of the home but won’t contribute to the mortgage… what can I do?

Legally, if you are both on the mortgage, you are both liable for payment of the mortgage.  If you default on the mortgage, the financial institution may take action against either or both of you.  It may also negatively impact on your credit rating.  It is therefore in both party’s interest to ensure the payments remain up to date.

You can negotiate payment of expenses directly with your ex, or you could obtain a court order (which could be expensive).

 How do I find out what my major assets and debts are worth?

For the home – get two or three agents out to give you a free appraisal.  That way you have a few to compare.  Where there is likely to be a disagreement, you might obtain a jointly instructed valuation of the home by a formal valuer who is independent and works for both of you.

Your savings, debts and superannuation are, in most cases, pretty straight forward – log on to the internet and print out your latest statement for all accounts, including the mortgage and credit cards.

For your vehicles – there is a website called Redbook (www.redbook.com.au) where you can carry out research on used cars.  Generally, for family law purposes, we use the midpoint of the private price guide (unless there is something unique about your vehicle).

For your business – speak to your accountant.  Obtain your last three financial statements and tax returns.  You may require an independent valuation depending on the type of business you have, speak with us for advice.

 I stayed at home and cared for the children, will I still receive something in a property settlement?

Yes.  Caring for the children is a contribution you made to the relationship.

The contribution you made staying at home and caring for the children is usually viewed as equal to your spouse/partner’s contribution by way of their employment.

I received an inheritance… does that get taken into account?

Yes.  Provide us with details of your inheritance, when it was received and how the funds were spent.  This is a contribution you made to the relationship.  The same goes for any other lump sums of money received during the relationship (such as gifts from family members, compensation payments and redundancies).

This is my second relationship, so I had a significant amount of assets at the beginning, does that get taken into account?

Yes.  The initial contribution you make to the relationship is a factor which is taken into account in determining the division of property.  The weight given to you initial contribution will depend on the value of the initial contribution, what impact it had on your relationship and the length of your relationship.

I’ve acquired assets since separation, does my ex have any entitlement to that?

The Court has the power to divide assets and debts that exist as at the time of the property settlement.  So any assets and debts that you have acquired since separation can be taken into account.

What are future needs?

The fourth step in a property settlement involves looking at the future needs of both parties to determine if there should be an adjustment in either of your favour (for the other steps in the property settlement, click here to see our article).

Most commonly, future needs adjustments are made to deal with income disparity between the parties, or where one party has the majority of the care of the children.  Sometimes a future needs adjustment may be made where one party has to incur significant medical expenses.

How is agreement reached?

Settlement can be reached in a few ways:  you can negotiate it directly with your spouse/partner; we could write to your spouse/partner or their solicitor, or you could attend mediation. If you cannot reach agreement then your options are arbitration (property matters only) or court. Arbitration is becoming increasingly popular, as it resolves the matter much more quickly than court. The cost of arbitration and court is similar.

How is the settlement documented?

Settlement can be formalised by filing Consent Orders with the Family Court or executing a Financial Agreement.  Either way, no one needs to attend the Court.

I’m getting the home in the settlement, what do I need to do?

You need to make sure your finance is in order.  We recommend speaking with your banker or broker prior to the agreement being made to ensure that you have capacity to borrow the amount you need and to get things started.  Usually there is only a time frame of around 4-8 weeks to get the settlement done so it is important not to delay.  Once orders are made, give us your banker/broker’s number and we will do the rest for you!

 These FAQs are a guide only and you should always seek legal advice about your specific circumstances. For more information, please contact us on (02) 4929 3995 or info@catherinehenrylawyers.com.au

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