Finalising Property and Other Financial Matters

When a marriage or de facto relationship comes to an end the partners need to formalise an agreement about how property and other assets will be divided. If the parties are unable to reach an agreement themselves it may be necessary to make an application to the appropriate Court to settle the matter.

The Court is required by the Family Law Act of 1975 to make an order which is just and equitable in all the circumstances. The court will establish the financial position of each party and then reach a settlement, taking into consideration:

the financial contribution made directly or indirectly by each partner
non-financial contributions, such as looking after children and the home
the earning capacity of each partner
any child support that partners might be liable to provide in the future

Certain time limits also apply to court applications for property settlement (and spousal maintenance) and unless the court approves a special case, proceedings must commence within 12 months of the marriage ending (keeping in mind the marriage can only end ofter 12 months of separation), or two years of the de facto relationship ending.

Financial and pre-nuptial agreements

Financial Agreements can be used to specify how assets, financial resources and spousal maintenance will be arranged if spouses separate. They can be created before during or after a relationship and they must meet certain legal requirements.

In order to be binding a Financial Agreement must:

be in writing;
be signed by both parties to the Agreement;
contain a signed acknowledgement by both people that they have obtained independent legal advice;
have attached certificates signed by the solicitors who provide the independent legal advice to each person.

A Financial Agreement can only be terminated by a Termination Agreement.