Property settlement is the division of assets, liabilities and financial resources in the case of a divorce or separation. This can be done either mutually by agreement, or through a judicial decision in the Family Court of Western Australia.

We have significant experience in successfully representing clients in complex property settlements and cases involving companies, trusts and overseas assets.

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Following the breakdown of a marriage, or de factor relationship, parties need to consider how they are going to divide their property. There are many factors to consider including strict time limits and how the assets will be divided.

Time Limits

Married – Married couples have 12 months from the date of divorce to apply to the family courts for a property settlement and it is 12 months from the date of divorce not from the date of separation.

De Facto – De facto couples have 24 months from the date of separation to apply to the family courts for a property settlement.

There are lots of matters to take into account when negotiating property settlement and we can provide you with advice on your entitlements.

The Family Court has the power to make orders for property settlement.

All of the assets of the parties involved are taken into account – even if the assets are not in joint names. Each party has an obligation to full disclose his or her financial position to the Court, and to the other party.

How To Divide The Assets

When making a decision on how to divide the assets after the breakdown of a relationship, the court will use the ‘four step’ approach:

  1. Identify and value the assets and liabilities of the parties. This may be a simple or complex task depending on the circumstances. The Family Court can have regard to assets held by a company or a third party in certain circumstances.
  2. Assess the financial and non-financial contributions of the parties before, during and after the relationship. The assessment of contributions can be difficult in cases involving significant initial contributions, inheritances, compensation payments or gifts. There is no presumption that an assessment of contributions will result in a equal division of the assets.
  3. Assess the parties’ Section 75(2) factors, sometimes referred to as ‘future needs’. The court can make an adjustment in favour of one party if the circumstances permit. However the assessment of these factors or needs is discretionary and the adjustments generally vary from case to case.
  4. Lastly, assess what orders, if any, are just and equitable in the circumstances of the case.

The Court is obliged to make orders which are ‘just and equitable’ having consideration to:

* the financial contributions of each of the parties;

* the non-financial contributions of each of the parties, particularly in the role of homemaker and parent;

* the future financial position of the parties, including the need to provide for children and the capacity of each of the parties to provide for those children.

If the parties have come to an agreement then they can enter into consent orders.

An application for property settlement can be commenced at any time up until 12 months after a divorce becomes final.

There are different limitation periods that apply for de facto couples.

Can I enter into a financial agreement if I am in a de facto relationship?

Financial agreements are now recognized and can be enforceable in the Family Court of Western Australia.

Read more on financial settlements.