Asset and property division

Our Asset and Property Division Lawyers know that dividing your marital property often means parting with more than half of your assets, some with sentimental value and emotions attached. Lawyers listen carefully to your circumstances and your goals to get the outcomes you want. We create a strategy that guides you towards the best possible outcome for a fair and meaningful property & debt division.

What is asset division

Asset Division under the Family Law Act means that your family assets & debt are often split between you and your ex-partner in a just and equitable manner.

Property includes all assets and debts which are owned by the parties to the relationship whether it be in joint names or just one persons name. Some examples of property include: the family home; cash; bank accounts; jewellery; vehicles; superannuation; businesses; debts (including credit cards, loans, mortgages, and personal debts); and inheritances.

Property is generally what is accumulated during the cohabitation and/or the marriage between the parties. It generally does not include what is accumulated prior to and after cohabitation and/or the marriage. However, this is not always the case and it is important you seek legal advice about your circumstances and what will and won’t be included in the property pool.

How does the court decide how to divide assets and debts

There is no precise formula in dividing your property. The judicial officer assesses every case based on the evidence and decides what is a just and equitable division between the parties.

The general principles in deciding a breakdown of marriage or de facto relationship are:

  • What assets and debts do you have and what are their values;
  • Considering the direct financial contributions by each party to the relationship such as wages and salary earnings;
  • Considering indirect financial contributions by each party such as gifts and inheritances from families;
  • Considering non-financial contributions to the relationship such as caring for children and homemaking; and
  • future requirements of each party will be considered such as age, health, financial resources, care of children and ability to earn.

The court decides on the asset division based on the values of your assets and property as of the day you reach an agreement. They do not look at the value of your assets on the day you separated or an agreed date between the parties. For example, if you and your ex-partner own real estate, when you separated the value was $500,000. When you come to an agreement it is worth $750,000, the court looks at the current value as of the day you reached an agreement and include this value in the property pool.

Excluded assets and debts

Certain types of assets are excluded under the Family Law Act. Excluded assets generally refers to assets you owned before you married, but may also include inheritance, gifts, injury settlements or awards and insurance payments. However, in some circumstances these may not be excluded and will form part of the property pool.

Time limits for applications for property adjustments

If you were married, you must make an application to the court for property adjustments within 12 months of your divorce becoming final.

If you were in a de facto relationship, you must make an application to the court for property adjustment within 2 years of the relationship breaking down.

If you do not make your application within these time limits, you will need to seek leave of the court. There is no guarantee your application for leave will be granted which means you may be unable to obtain a property adjustment.

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    Frequently Asked Questions

    You can finalise your property division agreement in a financial agreement or by applying for consent orders from the court.

    Parties must engage in pre-action procedures which can include family dispute resolution and exchanging all of your financial documents with the other party. You should engage in negotiation to try and settle your property division or at the least, narrow the issues. If this has been unsuccessful, you can apply to the court for a property division.

    If you have been unable to reach an agreement and completed the pre-action procedures, the parties must file an Initiating Application to the court to start the process.

    Superannuation is considered property, however it is treated separately. It is not mandatory that superannuation is divided between the parties, but it can be if desired.

    Property division for married couples is the same for all States in Australia as the rules are prescribed by the Family Law Act

    However, there is no ability for parties in a de facto relationship to obtain superannuation division if they are in Western Australia. This is because they are governed by a different Act.

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