Property Settlement

Property Settlement

The Family Law Act provides for parties to a marriage or de facto relationship, including same sex couples, to bring property settlement proceedings should their relationship break down. Either party must be present or ordinarily a resident in Australia or an Australian citizen when the application is filed.


Property settlement is the process of severing married or de facto couples financial relationship through the division or allocation of property, liabilities and financial resources when, in consideration of all circumstances, the Court is satisfied that it is just and equitable to do so.

Parties may reach an agreement without Court proceedings, through negotiation, mediation or other alternative dispute resolution which may be formalised by way of an application for consent orders or a binding financial agreement. However, if such alternative dispute resolutions are unsuccessful then a party may commence proceedings seeking property settlement orders provided that such application is brought within the limitation periods.


The first step is to identify the party’s assets, liabilities and financial resources and whether they are held in their sole name, jointly with each other, with another person or on trust. It is important to note that superannuation is treated as an asset for the purposes of property settlement and may be subject to a superannuation splitting order.

An assessment of the financial, non-financial and welfare contributions as well as any future need of either party is then undertaken.

The final step is an assessment of the findings and orders sought to ensure a just and equitable alteration of property interests is achieved.

Final property orders should be drafted to include mechanisms for self executing enforcement remedies such as a default sale clause, an order for interest payable after the due date for any payment, an order for security for payment or an order enabling a registrar of the court to sign any document on behalf of any party who fails to do so.

Parties may also commence proceedings seeking enforcement orders by way of an application in the Federal Circuit Court or an enforcement hearing in the Family Court.


A party to a marriage may bring a property or maintenance application at any time following separation unless a divorce order has been granted, after which a party only has 12 months from the date of the divorce becoming final in which to apply for any final or interim property or spousal maintenance orders. Proceedings may be commenced out of time with leave of the Court.

A party to a de facto relationship has only 2 years from the date their relationship ended to bring a property and maintenance application. A party to a de facto relationship cannot apply under the Family Law Act if the relationship broke down before 1 March 2009 unless both parties consent to their application being heard. If no consent is obtained such an application would need to be made under their State or Territory law.

Ordinarily, parties must be living in a de facto relationship for approximately 2 years, unless there is a child of the relationship or substantial contributions have been made during the relationship to satisfy the Court that it is just and equitable in all the circumstances to alter property interests. Unless a de facto couple registers their relationship, there is no written document as to the existence of their relationship or its commencement date. A party to a de facto relationship make seek a declaration as to the existence or non-existence of their relationship pursuant to section 90RD.


Contact Brydens Lawyers to arrange a consultation with our representatives to discuss your property settlement matter.


At Brydens Lawyers we take the time to ensure we have full details of your matter to enable us to provide you with advice tailored specifically to you. We have demonstrated expertise in resolving complex property and financial issues, and can provide you with professional advice that is highly regarded within the legal profession.

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When you are making the biggest financial commitment of your life you want someone acting for you who is meticulous and thorough, yet still able to take the time to walk you through the process and put your mind at ease. Celeste and her team at Brydens Lawyers were there supporting, explaining and smoothing over any problems every step of the way! I could not recommend Celeste and her team more highly.

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Celeste was amazing. She was available to us throughout the entire process of buying our new home; advising on the contract before we even made an offer through to our seamless settlement. Celeste anticipated our needs and handled everything. I would highly recommend Celeste for buying and selling your property.

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