Property settlement in the legal sense is an agreement that finally separates the ongoing financial relationship between the parties. It involves separating all assets and liabilities, and superannuation.

Reaching an agreement with the other party offers many advantages, such as:

  • You make your own decisions therefore both of you will be relatively happy with the outcome.
  • You will reduce the financial and emotional impact on each of you, as well as significant others as the stress will be greatly reduced.
  • It shows that you can both still discuss important issues, and the likelihood of being also able to discuss children’s arrangements (if there are children) is more likely.
  • You are able to move forward knowing that you have certain property, or assets available to you.

Things to think about:

  • List all of your assets. These include houses, cars, boats, bikes, shares, companies, trusts or businesses, investments and bank accounts.
  • List all of your debts. These include loans, mortgages, credit cards and overdrafts.
  • List the balance of each of your superannuation accounts, for yourself and your partner or husband/ wife.
  • If an agreement has been reached, you can formalise the agreement into a Binding Financial Agreement, or Consent Orders. No other written document, i.e. a Statutory Declaration is legally binding.

What happens with Superannuation?

Often a large asset is superannuation. Superannuation is able to be split, for example, the wife might take some of the husbands superannuation as part property settlement. It is important to note that superannuation will always remain superannuation, i.e. you cannot have it in cash, unless you are of retirement age.

Furthermore, if you are in a de facto relationship, WA does not yet have legislation allowing you to split superannuation, therefore, you will each retain your individual superannuation entitlements.

How do we reach an agreement?

For more information about making arrangements, you should first read the brochure Marriage, families and separation.

We offer an initial consultation. During this session we can explain the property process with you, and advise you as to what would be a fair agreement, taking into account the issues that we must regard. Once you are fully aware of your rights and responsibilities, you can then enter into negotiations with your former partner or husband/ wife, knowing if you reach an agreement, you are making an educated decision, based on what is just and equitable.

You should seek legal advice when considering what is best for you.

How do I formalise our agreement?

You can agree on how your property should be divided without any court action. You do this through either:

  • A binding financial agreement, or
  • An agreement formalised by applying for consent orders in which you ask a court to make orders in the terms of your agreement.

What are consent orders?

A consent order is a written agreement that is approved by the Court if the Court is satisfied that the proposed agreement is just and equitable in all of the circumstances. By both of you signing consent orders, it means you agree with the orders and will follow the terms stated in the document. When the consent orders are made by the Court, they are official Court documents, and you may then rely on them to:

  • Transfer or sell property and pay minimal duty to transfer.
  • Transfer shares, motor vehicles, etc.
  • Decide who retains liabilities.
  • Split superannuation entitlements, (see Superannuation for important information) and
  • Make provisions for spousal maintenance.

We cannot agree about property and financial arrangements?

If you and your former partner or husband/ wife cannot reach an agreement between yourselves, all is not lost!
Options include:

  • Retaining a solicitor to act on your behalf and commence negotiations with the other party.
  • Attending mediation, in an attempt to reach an agreement or
  • As a last resort, commencing legal proceedings.

Legal Proceedings

Legal proceedings should be your last option, not your first. However there are circumstances that warrant urgent intervention.

We can represent you for legal proceedings commenced by another party or instigate proceedings when necessary.
The legal system can be daunting, but we will guide you through each step, ensuring you are fully aware of the options, next steps and what will happen at Court.

If you’re not sure what to do and have been served with Court documents, contact us for an initial consultation to get advice as to the best way forward, and what you need to do.

Contact us to book a consultation

(08) 6370 4460

Leah Keegan has been working almost exclusively in the area of
Family Law since 2008, firstly as a paralegal and then as a lawyer
following her admission in 2013.

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