If you and your former partner have owned property together, it
is very important that you get advice from a family law solicitor
about how to separate and finalise any property that you have with
a legal property settlement. This applies to married couples, de
facto couples, and same sex couples.
Family law property settlements help to protect the assets that
exist at the time of separation, as well as protecting the
individuals from any further debts that the other party may enter
into. But most importantly, entering into a family law property
settlement provides people with the certainty that they need to
move on to the next chapter of their lives.
When people either get married or enter into a de facto
relationship, they create a financial relationship between
A Family Law property settlement formally sets out who is to get
what out of the property, and ends the financial relationship that
is created as a result of their relationship status. This is
particularly important to protect each persons interests as they
move on with their lives and continue to acquire further property,
or incur further debts.
It is also important to do a Family Law property settlement soon
after separation, as the value of the property/debts is determined
at the date of entering an agreement or an order of the court being
made, not at the time of separation.
Scenario 1 –Tracey and Paul purchase a
house in Paul's name. Seven years later, they separate. Tracey
moves out of the family home and into a rental property. She does
not have any contact with Paul. After about a year, Tracey decides
that she would like to settle the property that is between them.
After seeing a family law solicitor, she learns that Paul has
increased the mortgage against the property without her knowledge,
depleting the equity that was available to divide between them.
Scenario 2 –Jen and Matt have a house
together. After separating, Jen stays in the home, and Matt moves
out. Then Jen pays Matt some money, but they never enter into a
formal agreement. Soon after, Matt re-partners and wants to buy a
new house. Jen then decides that a formal family law property
settlement is necessary. Because the property settlement is
considered to be at the time of a formal agreement and not the time
of separation, Matt's new house could become a part of the
Scenario 3 – Mark and Brad purchase a
house together. Two and a half years later, they separate. Mark
vacates the house. Six months later, he tries to buy a new house,
but cannot get loan approval as he is still on the mortgage for the
home he had with Brad.
Scenario 4 – Frank and Kate have been
married for four years, but do not own much property together so
they don't worry about doing a family law property settlement.
Two months after separating, Kate receives a large inheritance.
Frank then starts family law proceedings against Kate. Because they
had not done a property settlement before Kate received her
inheritance, Kate's inheritance now becomes a part of the
Scenario 5 – Karen and Scott have been in
a de facto relationship for 30 years. They built their home
together, and raised their three children there. When they
separate, Scott promises Karen that she can keep the house, and
that she will never have to worry about where she will live. They
do not do a family law property settlement. Five years later, Scott
starts proceedings to sell the house and split the proceeds
In each of these scenarios, the parties could have protected
themselves if they had taken steps to enter into a family law
property settlement soon after separation took place.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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