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Property Settlement

At McCarthy Durie Lawyers, our Family Law Team can assist you with your family law property settlement. 

Section 79 (for married couples) and section 90SM (for de facto couples) of the Family Law Act 1975 (Cth) (“the Act”) enables the Court to make orders altering the property interests of parties in a family law matter.

When determining property settlement matters, the Court will generally follow a four-step process. 


1. Identify the Property Pool

At the beginning of a property settlement it is necessary to determine the value of the existing legal and equitable interests of the parties. 

When we meet with you we will discuss with you the property and financial resources of you and your spouse or your former de facto partner. 

The determination as to what is an asset that forms part of the property pool and what is a financial resource will depend on the facts of each case. 


2. Assess Contributions 

The second step is to consider the parties’ respective contributions before and during the relationship and post-separation. This includes financial and non-financial contributions, as well as contributions to the welfare of the family. 

There are two approaches which may be adopted by the Court when assessing Contributions: 

  1. The Global Approach; or
  2. An asset by asset approach. 

As to which approach will be applicable will depend on the facts of each case.  


3. Consider Future Needs 

The third step is for the Court to then consider the parties’ respective ‘future needs’ to determine whether there should be an adjustment in favour of either party.   

Future needs can include the age and state of health of the parties, whether either has the primary care of children under the age of 18 and whether there is a disparity in earning capacity. 


4. Consider Justice and Equity 

Under the final step the Court looks at the assessment of the previous three steps and then asks itself the question as to whether the percentage division results in a just and equitable order. 


Consent Orders or a Binding Financial Agreement 

If parties are in a position to be able to negotiate a property settlement without the need for a Judge to determine the matter at Trial at Court, there are two ways in which to formalise that settlement: 

  1. Consent Orders; or
  2. A Binding Financial Agreement. 

For more information, please see our fact sheet as to the differences between Consent Orders and a Financial Agreement and the advantages and disadvantages of these settlement documents. 

Consent Orders

Consent Orders are a written agreement between you and the other party which sets out the terms of the agreement. 

If you and the other party can reach an agreement without the matter having to be determined by a Judge at Trial, Consent Orders can be filed with the Court. The Consent Orders are accompanied by an Application for Consent Orders and a letter to the Court addressing justice and equity. 

If your matter is already in Court and you have been able to reach an agreement with the other party, the terms of the agreement can be documented in Consent Orders and these are determined either by a Judge or Judicial Registrar in Chambers or handed up at the next Court date. No Application for Consent Orders is required in this instance. 

Consent Orders are generally considered to be the most cost effective and efficient way to document your agreement with respect to property settlement. 

We can assist you in the preparation of Consent Orders once you have reached an agreement with the other party. 

Binding Financial Agreement 

A Binding Financial Agreement is a written agreement between you and the other party which sets out the terms of the agreement. Unlike Consent Orders however, a Binding Financial Agreement does not need to be filed with the Court.

There are strict requirements which must be followed to ensure that a Financial Agreement is binding. Both parties must also receive independent legal advice in relation to the effect the agreement has on your rights and the advantages and disadvantages of making the agreement. 

Assuming that the Financial Agreement is binding the effect of this is that it extinguishes the parties’ rights to have the Court determine the property settlement matter. 

We can provide you with advice as to whether a Binding Financial Agreement will be appropriate in your matter and assist you in preparing that documentation. 


Spousal Maintenance 

At McCarthy Durie Lawyers, our Family Law Team is able to provide you with advice in relation to spousal maintenances issues.  

When married couples separate one party to the marriage may be unable to adequately support themselves financially following a separation. 

Section 72 (1) of the Act provides that a party to a marriage is liable to maintain the other party, to the extent that the other party is reasonably able to do so, if, and only if, that other party is unable to support themselves adequately, whether: 

  1. By reason of having the care and control of a child of the relationship who has not obtained the age of 18 years;
  2. By reason of age, physical or mental capacity, incapacity for appropriate, gainful employment;
  3. Any other adequate reasons. 

There are different types of spousal maintenance and in some instances a party may need urgent spousal maintenance to be able to adequately support themselves. 

We can assist in providing you with advice in relation to your options in relation to seeking spousal maintenance payments or advice in relation to your obligations to pay spousal maintenance. 


De facto Maintenance 

At McCarthy Durie Lawyers, our Family Law Team is able to provide you with advice in relation to de facto maintenances issues.  

When parties to a de facto relationship separate one party to the relationship may be unable to adequately support themselves financially following a separation. 

Section 90SF Act provides that a party to a de facto relationship is liable to maintain the other party to that relationship only if they have capacity to pay that maintenance and only if the other party is unable to support himself/herself adequately whether: 

  1. by reason of having the care and control of a child of the relationship who has not attained the age of 18 years;
  2. by reason of age or physical or mental incapacity for appropriate gainful employment; or
  3. any other adequate reason. 

A party can only make a claim for maintenance if they apply to the Court within 2 years after the end of the de facto relationship. A maintenance order also ceases to have effect upon the marriage of the person receiving maintenance unless special circumstances apply.

We can assist in providing you with advice in relation to your options in relation to seeking de facto maintenance payments or advice in relation to your obligations to pay de facto maintenance. 


Time Limitations 

For married couples, you have one year from the date a Divorce Order is made to commence Court proceedings for property settlement. 

For parties in a de facto relationship, you have two (2) years from the date of separation.

If your property settlement matter is not resolved within the above time frames, you will otherwise be required to apply for the Court’s leave to have the matter dealt with “out of time”. The Court will not grant leave to proceed out of time unless it is satisfied that the specific requirements under the Act have been met.

If you are aware that your Limitation Date is fast approaching, we recommend seeking urgent legal advice as soon as possible to ensure that you can resolve your property settlement matter. 


Disclosure 

In all property settlement matters, both parties have a duty to provide full and frank disclosure. 

The duty of disclosure requires all parties to a family law matter to provide to the other party all information relevant to their financial circumstances. There are consequences which can stem from a failure to disclose.

The duty of disclosure requires disclosing to the other party all sources of earning, interest, income, property and other financial resources, this includes property and financial resources which are held in corporations, trusts or other similar structures.

After our initial meeting with you we will ask you to start compiling your financial disclosure to be sent to the other party. We will also write to the other party or the other party’s solicitor to request that they produce the relevant disclosure documents. 

Please see this link to a brochure published by the Court in relation to the duty of disclosure – Click Here