Property Division Lawyers Sydney

1. In Australia, dividing property between a separating couple (whether married or de facto) follows a four-step process: 

1. Identify and value the asset pool: The first step is to create a complete list of all assets and liabilities that are part of the relationship. This includes everything owned by either or both parties, regardless of whose name it is in. It also includes assets acquired before or after the relationship, as well as superannuation. Liabilities like mortgages, credit card debt, and loans are also included. All of these items are given a current value to determine the total net asset pool. 

1. Assess contributions: The court then looks at the contributions each person made to the relationship. This is not just about money. It includes: 

• Financial contributions: Things like income, savings, inheritances, and gifts. 

• Non-financial contributions: Contributions as a homemaker and parent, looking after the household, and making home improvements. 

• Family violence: The economic effect of family violence must be considered, where relevant, when making decisions about property and finances after separation. Economic or financial abuse may constitute family violence. This might include where a person has controlled of all of the finances or spending. 

1. Consider future needs: The court considers the future circumstances of each person to determine if any adjustments need to be made to the division. Factors taken into account can include: 

• Age and health of each party. 

• Their income, financial resources, and capacity for employment. 

• Whether one person has the primary care of children from the relationship. 

• The impact of any family violence perpetrated during the relationship. 

• The length of the relationship and the impact on each person’s earning capacity. 

1. Determine if the outcome is “just and equitable”: Finally, the proposed division is assessed to determine if the result is fair and reasonable for both parties in their specific circumstances. It’s a final check to ensure the overall outcome is appropriate, not just a mathematical calculation. 

Family lawyers help negotiate legally binding and enforceable agreements regarding property division through Binding Financial Agreements or Consent Orders or represent clients in court to achieve fair outcomes. 

No, you do not automatically keep property that is in your name after separation. The property becomes part of a joint asset pool, regardless of whose name it is in. The parties can decide how the property will be divided through agreement (documented into a binding financial agreement or consent orders) or a court can decide the property division for the parties.

Not necessarily. It depends on the circumstances of the marriage or de-facto relationship. Things that a court considers when deciding how property should be divided between separated couples are the contributions each party made to the family, the future needs of the parties, and whether the outcome (the property division) will be just and equitable.

Anything of value acquired before, during, or after the relationship, including those in joint or sole names, and those held in trusts or companies. These include real estate, cash, bank accounts, superannuation, cars, boats, shares, physical metals, jewellery, furniture, artwork, antiques, family business assets, Employee entitlements, redundancy packages, long service leave, family trust assets, digital assets (cryptocurrency), inheritances, and lottery winnings.

Yes, there is a time limit to apply to the court for a property settlement, but it varies depending on your relationship status. Married couples have 12 months from the date their divorce order is finalised, while de facto couples have two years from the date of separation. Missing these deadlines requires a court order for an extension of time, which is only granted in limited circumstances and is not guaranteed. 

When separating, you can divide your property in either of the following legally enforceable ways: 

1. Consent Orders – the couple reaches agreement on how the property should be divided and this agreement is made into a legally enforceable document called Consent Orders. Consent Orders are approved by the court even though you don’t have to go to court; OR  

1. Binding Financial Agreement – the couple reaches agreement on how the property should be divided and this agreement is made into a legally enforceable document called a Binding Financial Agreement (which does not need court approval but does need a lawyer to provide a certificate of independent advice); OR 

1. Court Order – where the couple cannot reach agreement on the property division on their own, the decision is made by a judge in court.  

Certain risks may arise: 

1. Taxes and Duties – when real estate is transferred between parties, it is generally treated as a ‘sale’ and incurs taxes. If you transfer real estate pursuant to the terms of family law consent orders, a binding financial agreement or court orders, you generally avoid paying these taxes.  

1. Deadlines – there is a time limit to apply to the court for a property settlement. Married couples have 12 months from the date their divorce order is finalised, while de facto couples have two years from the date of separation. Missing these deadlines requires a court order for an extension of time, which is only granted in limited circumstances and is not guaranteed and can be costly. 

1. Ongoing financial liability – you can remain responsible for debts and liabilities of your former partner that were incurred in joint accounts or on shared mortgaged assets. 

1. Future financial complications -unresolved financial ties can make it difficult to purchase property, secure loans, or plan for your financial future.  

1. Claims against your future property by your former partner – if you are separated and don’t legally formalise the property division in consent orders, a binding financial agreement or court orders, your former partner may be able to make a claim against assets you acquired after separation.  

1. Your Will – a formal property division also deals with issues concerning your estate after you pass away, so if you are separated and do not have legally enforceable consent orders or a binding financial agreement or court orders in place covering it, then your former partner may also be free to challenge your will (or your estate if you die without leaving a will) after you have passed away. 

Ultimately the cost depends on you and your former partner.  

If you have reached agreement on your own and would like us to write up consent orders setting out your property division agreement, then we can charge you a fixed fee for this. 

If you and your former partner have not reached agreement and would like our assistance to negotiate a property division agreement (consent orders or binding financial agreement) the cost will be determined by the amount of time you take to reach agreement – the longer you take, the higher the cost.  

If you and your former partner are unable to reach agreement either alone or with our assistance and the matter needs to go to court, it will cost a lot more.  

If your money is tied up in real estate or other assets, you are not employed or your former partner controls the family finances, a family law finance provider, such as JustFund, may be able to assist you. Please visit their website at justfund.com.au for more information.  

Each party usually has their own lawyer in property division cases and generally pays their own lawyer’s costs, court filing fees and any related third-party costs. In rare cases the court may ask one party to pay a portion of the other party’s legal costs.

Yes, JustFund may be able to help you. LEDA Lawyers has partnered with a family law finance provider called JustFund who may be able to assist you by offering you a payment solution for your family law legal fees. JustFund offers a flexible line of credit to cover family law fees and disbursements for your property division matter. Unlike traditional lenders, JustFund focuses on your unique circumstances, not just metrics like income, employment history and credit score. Please let us know if you are interested in more information on JustFund. In the meantime, please feel free to explore their website at: www.justfund.com.au

Lawyers can assist you and your former partner to reach agreement without the need for you to talk with each other. Your lawyer can either communicate with your former partner’s lawyer on your behalf or with your former partner directly, on your behalf (if they don’t have a lawyer). Lawyers can also use the services of a mediator who have expertise in assisting separated couples reach agreement on property division so they can keep the matter out of court.

Yes, a lawyer can assist you with both issues at the same time. If you and your former partner are able to reach agreement (lawyer assisted or otherwise), this can be formally documented into legally enforceable consent orders – for combined child custody and property division. Alternatively, if you and your former partner cannot reach agreement a lawyer can assist you to start court proceedings so a judge can decide the outcome.

If you and your former partner are both the borrowers and legal owners of the mortgaged property, you both remain legally responsible for the entire loan until the loan is refinanced or the property is sold – regardless of who lives in the home. If the repayments are stopped, the lender may take legal action by selling the property to recover their money. Although you are both still liable, you can negotiate which of you will continue paying the loan repayments while you sort out the property division. These repayments can be factored into the negotiated outcome.

Yes they can, however, a lawyer can apply to the court for a court order to restrain your former partner from selling or disposing of the property until a property division is finalised. In some circumstances you may be able to lodge a caveat on the property to stop the sale.

No. In order to be legally enforceable, a property division agreement must strictly comply with specific requirements under the Family Law Act.

A family pet is a member of the family, however, the law deals with family pets (companion animals) under the category of property division, so if you would like a legally enforceable document setting out who will own the family pet after you and your former partner separate, you should include this when you are arranging a property division. 

If you and your former partner reach agreement on who will own the family pet after separation, this can be formalised into either a binding financial agreement or consent orders, without the need for you to go to court for a judge to make the decision. 

If you and your former partner cannot reach agreement on who your pet will live with and you take the matter to court, then the judge will make the decision for you. The court can only make one of the following court orders regarding pets: 

1. one party is to own the family pet; or 

1. ownership of the family pet be transferred to another person who consents to the transfer of ownership; or 

1. the family pet be sold. 

The Court cannot make orders for the shared care of a family pet.