Property & Finance

What is Property Settlement?

Property settlement refers to the negotiation and agreement between the couple about how to divide up their financial interests. It involves splitting the accumulated assets and liabilities as well as making arrangements for ongoing financial maintenance payments where appropriate.

Property settlement is a completely separate legal process to getting a divorce. It is typically the most complicated, stressful and expensive part of the overall divorce process.

A property settlement includes all material assets (and liabilities) and household items that have been acquired by either or both parties during the marriage. Depending on the length of the marriage, and barring any exceptional circumstances, it also includes assets which were owned individually by either party prior to the marriage.

There are other financial resources that need to be taken into account, where there is the likelihood of resources being provided to either party in the future, such as entitlements to benefits from a family trust.

Superannuation is included as ‘property’ but it is dealt with separately to the rest of the property split as the funds can't be accessed immediately. Most super funds can be split between the parties but the benefits are only due on retirement or preservation age.

If you can agree on a property settlement negotiation, it should be made legally binding by applying for property consent orders from the court or entering into a legally binding agreement.

If you can't agree, you can ask the court to make the decisions about the property split for you. This is done by filing an Initiating Application for Property Orders.


What is Included as Property?

To commence property settlement negotiations, you will have to list and assign an agreed value to all of the property of both parties, which in the simplest form means anything of financial value.

Property includes all assets, liabilities and financial resources whether they are in joint names or the name of only of spouse.  All items acquired before and during the relationship as well as those acquired after separation are included.

For the purposes of property settlement, all of the items listed below are included but the list is not exhaustive.  


Assets (either jointly owned or in individual name)

  • Real estate - family home, holiday home, home purchased for another person to live in, investment properties

  • Cars, and other vehicles including, motor bikes, scooters, trailers, trucks, caravans and water craft

  • furniture and household contents

  • bank accounts

  • shares and other investments

  • business entities including trusts, companies, partnerships, syndicates, sole and joint trading ventures

  • machinery

  • specialist hobby or leisure equipment of commercial value

  • tools of trade

  • livestock

  • intellectual property - patents, trademarks and copyright with commercial value

  • life insurance

  • jewellery

  • collections such as art, antiques, stamps etc.,

  • airline or other loyalty points of value

  • unused annual or long service leave

  • money owed by a third party


Liabilities (in either joint or separate names)

  • mortgage

  • personal loan

  • taxation liability

  • credit cards

  • finance facility or store cards

  • CGT, Stamp duty or other costs payable as a result of property distribution

  • money owed to a third party


Financial resources


If you are unsure as to whether something should be included in the property settlement, seek the opinion of a family lawyer.



Superannuation is considered as a financial resource in a property split and can be divided in any proportion through an agreement or court order.

Superannuation interests with a withdrawal benefit of less than $5,000, and those paying a non-commutable pension or an annuity of less than $2,000 per annum, are considered unsplittable interests.

If you are entitled to a portion of your ex-partner's superannuation it will remain subject to superannuation laws and only be accessible after retirement age.

Generally all superannuation is taken into account, regardless of whether it was acquired before or during marriage or after separation.

A court would decide on the proportion of the split based on what is "just and equitable" and this is not necessarily 50/50.

The superannuation splitting laws apply to:

  • married (or formerly married) couples who had not finally settled their property arrangements, by a court order under section 79 of the Family Law Act or an agreement approved by a court under section 87 of that Act, before the laws commenced on 28 December 2002, and

  • de facto couples, in States and Territories, whose relationship broke down on or after 1 March 2009 (South Australian de facto couples, where their relationship broke down on or after 1 July 2010), and WA since 28th September 2022.

You are advised to seek legal advice, as the payment splitting agreement may not be binding on the trustee of the superannuation fund if you don’t.


'Out of Court' Property Settlement

Many couples are able to negotiate a property settlement between themselves without involving the family court and this is called an out of court settlement.  

Property settlement and division of assets can take about 2-3 years if you pursue it through the family court system.   An out of court settlement is without doubt the best way to resolve your property issues, if possible. 

Few couples are able to manage the entire process on their own and agreement is often reached with assistance from dispute resolution mediators, collaborative family lawyers or with negotiation between the couple but with separate family lawyers advising each party in isolation.

You are strongly advised to seek legal opinion about your specific circumstances before agreeing to any form of property settlement.

Before you seek legal advice, ensure you have collated all of the information they will require. They simply cannot advise you on your circumstances if they don't know what they are. The Split Kit has been specifically designed to assist you to collect all of the information and present it in a very simple format.

Your aim should be to negotiate a division of your assets and provision for your ongoing needs and those of any children which is within the just and equitable range by applying the four step process used by a judge if your case was to appear in court, without incurring the time, anxiety and costs of going to trial.

Around 95% of cases in Australia are settled out of court, though many of those are finally thrashed out days before trial. Many couples reach an out of court settlement after having initiated an application with the court for property orders and having completed part of the procedural requirements to attend trial. So often in these cases, the same or similar outcome could effectively have been reached earlier in the process and without incurring the additional legal fees.

If you do file an application for property orders, it's important to remember that you can step back from the court process at any time and reach an agreement between you and your former partner out of court.  This is particularly relevant if you have already had a hearing in front of a judicial officer who has offered guidance on how your case may be viewed in court.

That said, there are no guarantees you will get the orders you are asking for when it comes to rulings in the family court. You may appear before a different judge to the one who offered guidance. Each judge applies the principles of the law to the case as they see fit on the day. The results could easily vary from one judge to another.

In many cases, you would be better off to arrive at an out of court settlement that each of you can live with and save yourself the stress and significant legal fees involved in going to trial.

Even when you are able to negotiate with your partner to reach an agreement on property issues, it is important to take legal advice to ensure that you are aware of all of your rights and responsibilities.

If you and your ex-spouse can reach an agreement out of court, it is strongly recommended that you formalise your agreement by way of a Legally Binding Financial Agreement or Consent Order sealed by the Family Court.

The court must be satisfied that a property settlement is ‘just and equitable’ before it will endorse your agreement.

If you are unable to reach an agreement, you can lodge and Initiating Application for Property Orders.

For married couples, the application can be lodged before divorce but it must be done within 12 months of the date a divorce is granted. For non-married couples, it must be done within 2 years of the end of the relationship.

Failure to lodge within these time frames will mean you would have to seek leave from the court to hear your matter at a later date and provide exceptional circumstances for them to do so.


How Does the Court Determine Asset Split?

If your case goes to trial and a magistrate determines a property settlement for you, one of the main objectives will be to work towards a clean break for the couple.

The Court will seek to divide your assets in such a way that is just and equitable and avoids, if possible, the need for one person to continue to support the other's ongoing living expenses by making payments to them in the future.

A clean break aims to finally dissolve the financial relationship between you and your ex-partner and avoid any further association with each other in the future in relation to property and finances.

Australia has a 'no-fault' divorce policy and accordingly, the Court does not consider the reasons your marriage or relationship has ended and compensate one person financially for the bad behaviour of the other. The only exceptions to this principle might be in circumstances where there has been an extreme case of family violence, fraud or significant and deliberate erosion of the asset pool.

Before a property settlement case will be heard in court, you are required to prove that you and your former partner have made an effort to settle the dispute using the services of a mediator, lawyer or alternative dispute resolution practitioner. Where there are exceptional circumstances such as not being able to locate your ex-partner or family violence is an issue, you can apply to the court to waive the requirement.

Pursuing a property settlement through the court is invariably a long and expensive process. There are certain instances where court proceedings are inevitable but you may well find you would be far better off to remove the emotion from your negotiations, come to a compromised agreement with your ex-partner as soon as is practical and free yourself to move on to more positive aspects of your life.

The approach currently taken by the Court in determining property applications is commonly referred to as the ‘four-step-process’.


Four-Step-Process for Property Settlement

When a magistrate looks at determining a property split and possible spousal maintenance for a couple, the following four-step-process is applied:

  1. Identify the assets, liabilities and future financial resources of the parties

  2. Assess the contributions made by the parties

  3. Evaluate each party’s earning capacity and future needs so far as they are relevant

  4. Make or seal orders made for a split of the assets and liabilities and any arrangements for ongoing financial support which are ‘just and equitable’.

Generally, a court will refer to a property split in terms of the percentage of the overall assets awarded to each party. So far as we can determine, there is no principle of family law that says the split should start from a position of 50/50 and deviate on the basis of influencing factors however that is the generally accepted practice.

Of course, there is no black or white answer and each case is considered on merit by the judge of the day.

A 60/40 property settlement without maintenance on one day could easily be a 55/45 split with maintenance when heard before a different Magistrate because of such factors as personal variances in the overall interpretation of the law, the magistrate's view of the contributions by each party or the emphasis and flow of information and questions between the legal representatives.

However, it is unlikely for one magistrate to rule wildly different than another. It is also unlikely for qualified lawyers to advise you and your ex-partner of wildly different outcome scenarios provided, of course, that both lawyers are working from the same set of information.

You and your former partner should take qualified advice and then aim to follow the four-step process to arrive at an agreement that would fall within the same range as a Family Court magistrate might rule, without incurring all of the cost of court appearances and fees due to the involvement of lawyers, forensic accountants, psychologists, or other third parties.  Don't underestimate the cost of lost opportunities throughout an extended period of litigation proceedings.  Sometimes it is far more valuable to you to accept an agreement that may not be exactly what you think you should get but at least you will be free to move on independently with your life.


Identifying net assets

The net asset value of the marital pot is the value of all of your assets less all liabilities.

List all of the assets you have within the partnership whether they are owned jointly or by one of you individually. Include any assets that are jointly owned with third parties. List all liabilities you currently owe, either jointly or individually. For the purposes of the initial assessment, anything acquired before or during the marriage, as well as post-separation is included.

Generally, if you owned assets before you were married, these too are deemed to be part of the joint asset pool. If you have been married for a very short period of time, this may mean you could retain assets you held personally before the marriage in the property split but you will need to seek expert assistance.

One of the first points of agreement you will need to reach with your ex, is the current value of each asset and all of the outstanding liabilities. If you can't agree on a valuation, you may need to engage a professional valuer, this is particularly the case with real estate and business interests.

The Redbook Online gives free vehicle price guides and offers an individual vehicle valuation for under $25 if required.

You may wish to include household items. Household items are not counted at their present replacement cost. These items are valued at their second-hand value; what you would get for them were you to sell the item through a market such as eBay, a second-hand dealer, auction, or a garage sale.

You should also consider all other financial resources, including superannuation, and any business entities over which either of you have influence, control, or prospective entitlements.

Accurate valuation of assets may mean you'll have to take into consideration issues regarding possible taxation liabilities, stamp duties, and the appreciation or depreciation of asset values.

Valuations can get quite complex where there’s joint ownership of assets with parties outside the relationship or elaborate trust and company business entity structures. You may benefit from engaging the services of a collaboratively trained financial advisor.

If you’re unable to reach an agreement as to the value of any asset, the Court may appoint a valuer to do so for you, and you may be required to share or pay the full costs of obtaining that valuation report.

In most cases, determining the net asset pool and making a start at negotiating a property settlement offer should be a task you can perform with The Split Kit and without professional assistance.


Identifying Contributions

You will need to assess and document the contributions of a financial and non-financial nature made by both you and your former partner.  This information will be included in your affidavit to file for consent of property orders and will be one of the first questions a family lawyer will have for you before they can offer you advice.  To help you to complete this information, download our free Summary of Significant Events form.

You should include all manner of contributions made before and during the marriage as well in the period post-separation. There are several types of contributions that may have been made by either spouse.

The court considers all of the following:

  • Financial contributions

  • Non-financial contributions, such as a homemaker, primary carer of children, or renovations to homes or other properties

  • Gifts, bonuses, and inheritance

  • Initial contributions, such as assets attained before marriage.

When establishing the contribution of each party to the joint financial pool, the Family Court attributes significant value to domestic duties, where one person has assumed the majority of domestic duties and child care.

In special circumstances, the Court may also take into account an exceptional skill one party has, such as the development of a patented product, if that exceptional skill has resulted in the primary source of significant wealth creation for the family.


Identifying ongoing financial needs

Were your property settlement to be decided by a Court, the following factors would be taken into account when determining the future financial needs for each of you:

  • Age

  • Health

  • Future parenting responsibilities, including the needs of the children and the capacity of each parent to provide for those needs.

  • Current income

  • Earning capacity and the likelihood in terms of physical and mental capacity for each person to be gainfully employed

  • The property and assets of each party

  • Any pre-agreed commitments to children such as education, vehicles, etc.

  • New de facto relationships and the combined financial resources of that couple

  • Any existing care or financial responsibility either party has to support other people

  • Child Support commitments

  • Eligibility for future financial resources such as pension, super or other benefit

  • Commitments of either party that are necessary in order for them to continue to generate an income

  • The impact of any Orders on the ability for either party to service existing debt

  • Any other circumstance that would significantly impact either party financially, which the judicial officer deems relevant.


What is fair and equitable?

The Court will try to arrive at a property split between you and your ex-partner and provision for ongoing spousal support, if it is necessary, that is fair and equitable. Fair and equitable is sometimes also referred to as just and equitable.

It is important to note, that ‘fair and equitable’ may not necessarily equate to an equal share of assets to each party.

You only have to read through the real life divorce stories on this site to see that an unequal division of assets plus an order for spousal support may not seem fair and equitable to some.

A hard working spouse of a 20-year marriage who has no desire to divorce may not think it 'fair and equitable' to be ordered to part with 60% of the family home and half of his or her superannuation, plus pay spousal support to a spouse who is less financially solvent, has been unfaithful, and is the one who wants to leave the marriage.

Similarly, a person who already had equity in a house when they married and is forced to lose 50% of that home and 50% of the time with their children after a 7 year marriage may not see that as a fair and equitable split.

However, with the introduction of no-fault divorce, the ruling in a property split will generally exclude any consideration of whose fault it was that the relationship ended and only consider each spouse’s specific economic circumstances during the marriage and concentrate almost exclusively on splitting the asset pool available at the time the case is being heard.

When a court determines that one spouse would be at a significant economic disadvantage post-divorce, it can use its fair and equitable discretion, to adjust the ratio of the split in favour of one spouse.

Courts will try to leave the parties on as equal economic footing as possible and try to prevent significant negative long-term financial consequences for either person.

If there are children involved, significant consideration will be given to ensuring the children will be able to enjoy a similar standard of living when spending time with each parent.

Some of the factors the court might consider in awarding more of the assets to one party, award the retention of pre-marital property, or to make an order for spousal support are:

  • The length of the marriage

  • A spouse's contribution as a homemaker or as a stay-at-home parent

  • The skill set and earning capacity of each spouse

  • The respective financial needs, especially considering parenting duties

  • The relative health and/or disability of each spouse

  • Any specific carer duties each spouse make have that would impact on their ability to earn a living

  • Absence from the workforce and loss of commercial skills in order to support the other spouse

  • The previous standard of living of the couple in relation to the standard of living that is considered reasonable for each party going forward

  • A spouse's contribution to the other's education or earning ability (for example one person supporting another through a degree into a high paying career path)

  • Whether one spouse's efforts caused a premarital asset, normally not subject to division, to appreciate, for example, time spent fixing up a spouse's premarital home or helping with landlord duties related to the property

  • The financial resources which cannot be split but would become available to each party in the future, for example, some forms of superannuation, trust income, future options

  • Whether one spouse has a specialised skill set or activity, such as a patented idea or product, pending contracts, which will result in significant financial gain.


In rare circumstances, a spouse may be compensated for their ex-partner's behaviour and 'fault' might be considered to award more of the property share to the spouse who has been wronged.  

Such cases might include:

  • Financial wastage of a business or assets

  • Crime or fraudulent disclosure of assets

  • Addiction specific activity of one spouse which resulted in the depletion of family resources

  • Failure to provide support for a family

  • Family violence and abuse.


Spousal Maintenance

What is Spousal Maintenance?

Spousal maintenance, often referred to as Spousal Support or Alimony in some countries, refers to periodic payments made by a higher-earning spouse to a dependent ex-spouse after a property settlement is finalised. It’s for the sole purpose of supporting dependent spouse as an individual and not linked to child support payments.

Once agreed or ordered, spousal support payments are paid from the post-tax income of the higher earning spouse and are non-taxable in the hands of the receiver.

You can make an application to the Court for Spousal Maintenance before you are divorced. You may also apply if you are living separately under the same roof.

Where money is paid by order from the higher-earner to a dependent spouse so they can support themselves throughout the negotiation process before a property agreement is reached, this is called Interim Spousal Maintenance or Interim Spousal Support.

If there is no formal agreement in place during the interim period before a property settlement is agreed or ordered, the payments by one spouse on behalf of or to the other are more likely to be considered as general living expenses funded from joint marital funds that maintenance payments.


Who can apply for Spousal Maintenance?

If you were in a marriage, you are eligible to apply for Spousal Maintenance.

If you were in a de facto relationship, you must satisfy the requirements that a de facto relationship existed and then it will depend on the date you separated as to whether or not you are eligible to apply for Spousal Maintenance. You may be eligible if you separated from a de fact relationship after:

  • 1 March, 2009 (Qld, NSW, ACT, Tas, Vic ,and NT)

  • 1 July, 2010

  • 1 December, 2002 (WA)

The Court may make any order for spousal maintenance to be paid in a number of ways including ordering a lump-sum payment, periodic payments or the transfer of property.

You must apply for Spousal Maintenance within one year of a divorce being granted or within 2 years of a de facto relationship ending. You will need to apply for leave of the Court to make an application outside these times.


When is Spousal Maintenance Awarded?

Spousal maintenance is only awarded if one person is unable to fully sustain their normal living expenses and their ex-spouse's financial circumstances allow them to assist them financially. Some reasons a dependent person might need assistance could be:

  • age

  • mental or physical incapacity to find work

  • they need support to retrain in order to return to workforce after assuming homemaker duties during marriage

  • because they must stay home to care for children or other family members.

It is usually in cases where there is a significant disparity in earning capacity or assets are too limited to allow an equitable split that spousal maintenance may be awarded. Where one party may have given up a career to assume the majority of the domestic duties and support their spouse in their career, spousal maintenance may be awarded for a defined period of time to allow the dependent spouse a retraining period to improve their skill set and increase their earning capacity.

In Australia, the Court will generally look to achieve a clean break settlement in which no spousal maintenance is due. In order to achieve a clean break, the person who would otherwise have claimed spousal maintenance may receive a greater share of the assets in lieu of maintenance. They are expected to use this additional share to grow their net wealth and provide for themselves.


How long does an order last?

An order for Spousal Maintenance my be made with time limitations included such as support for 3 years to allow for retraining, or for a defined period of time to allow for full-time parenting of young children.

Once an order for Spousal Maintenance has been made, you may apply to have the terms varied. Time limits do not apply to making an application for variation.

Spousal Maintenance orders end:

  • when the duration of the order as dictated by the Court expires

  • when the payee dies,

  • if the payee remarries (unless the court orders that payments should continue because of special circumstances),

  • when the payer dies (there may be special conditions in the order that allow for a final lump sum payout from the estate to the payee)


Making a Property Agreement Legally Binding

Once you have negotiated a property settlement, it is strongly advisable that you document and formalise the details.  

There are two ways to do this.  

  • File a Consent Order, or
  • Enter into a Binding Financial Agreement.  

Both of these options are legally binding.  This means you must abide by the terms set out in the document or risk further legal action against you, be fined, ordered to do community service, be imprisoned or ordered to pay costs to the other side.

There are pros and cons for both options and you should take legal advice as to which is most appropriate for your circumstances.


Consent Orders:

  • the application is filed by you and your former partner in the Court

  • are scrutinized by the Court to determine that the orders you have asked for are 'fair and equitable'

  • the orders must be made by a Court

  • can be used to document both property and parenting agreements

  • can by completed without the assistance of lawyers

  • costs less than a entering into a Binding Financial Agreement


Binding Financial Agreement:

  • can be entered into at any point in the relationship

  • must be drawn up by a lawyer

  • is not scrutinised and the terms are not reviewed by a Court or anyone else

  • the terms do not have to be fair and equitable

  • both parties must be ordinarily resident in Australia

  • is only binding when each party has taken independent legal advice from their own lawyer before signing each page

  • each lawyer who provided advice must sign a Lawyer's Certificate confirming advice was given before the client signed

  • cannot be entered into by a person who has already entered into a Binding Financial Agreement with another partner

  • is not filed or registered anywhere

  • does not cover parenting arrangements


What Happens to a Family Business?

An interest in a business, owned by either party personally, or through any form of corporate entity, such as a trust or partnership, must be considered in the property split.

Some issues to consider are:

  • The value of the business

  • Who, if anyone, will retain the going concern

  • Will assets used by either party such as vehicles be retained or sold and the proceeds split

  • Will either party will resign from office

  • Access (or restricted access) to premises and resources by either party

  • Notification to creditors and clients of a change in your business

  • Personal guarantees by directors


The Court is unlikely to order one party or the other to retain the business. If you cannot decide between you who keeps an interest in the business, the order will most likely be to sell the business and split the proceeds in accordance with the Family Law principles.

In all cases, you will require a valuation of the business.

Typically, couples involved in a property settlement are advised to aim towards splitting assets and ceasing any future financial involvement with each other. Where there is a family business involved, it may not be so simple. It may be more prudent to enter into a binding agreement and continue to operate the business under the terms of the agreement until a later date.

You are strongly advised to seek assistance from a collaboratively trained financial advisor if you are separating and there is a family business involved.

Download our free separation check list to ensure you don't miss any of the small things which could cause your business big issues in future.


Valuing a business

You will need to have an agreed value of a business on which to base negotiations. You and your ex-partner can either agree upon the value of a business as you determine it, or have it valued by a qualified valuer. It is important to use a valuer who is familiar with the industry and has no conflict of interest with either party.

Property settlements are negotiated on the value of assets at the time of settlement. If there is a delay in the initial valuation and eventual settlement, circumstances may have changed such that it will be necessary to get the business revalued.

A fair way to engage a valuer is for one party to present three options and the other to select the valuer to be used from those offered. You will have to pay for the services of a valuer.

The valuer considers the competition which exists and industry wide norms and conditions. Where one party's skill set or future involvement is intrinsically linked to the value of the business, this is also taken into account.

Valuing goodwill is always a contentious issue in family law property settlements. It is often difficult to determine whether the goodwill associated with contracts, methodology and reputation follow an individual or the business. In small businesses which revolve around a single person, their personal goodwill often doesn't have any significant market value if the business were to be sold.

Other factors to be taken into account in valuing a business include the taxation consequences of a sale, the effect of any loan accounts within a business, the value of any intrinsic benefits flowing to the owners of the business in addition to income and the value of any personal guarantees provided by the owner of the business.

The valuer will review the books and records of the business to determine the revenue and expenses. They may also visit the premises to inspect the fixed assets and get a general feel for the business’s day to day operations.

A 'fair market value' will then be attributed to the business. Fair market value is that price which a willing but not anxious buyer, at arm’s length, being informed with adequate information, will pay for the business.


Methods of Valuation

The net asset backing

This approach is often the primary valuation technique used where a business is not making profits. This approach might be used where value of assets of the business can be readily determined and adopting this method would result in a valuation higher than any of the earnings based approaches. The value of the business using this methodology would then simply be the result if all of the assets were added and the liabilities deducted.

Capitalisation of future maintainable dividends

This is generally used to value a minority interest in a business. The holder of the minority business are usually not in a position to influence the flow of dividends, the reinvestment of any income back into the business or the strategy or policies governing the operation of the business. The value of the minority interest rests primarily with the receipt of dividends.

Net present value of objected earnings

In this approach, the future amounts of income are reduced to take into account inflation to work out what that income is worth in today’s dollars. The value of the business is the total of all future income it will produce into today’s dollars. This method allows for fluctuations in the future performance of the business and is normally applied to projects with a known life span such as a business based upon a particular piece of technology, patent or fixed term contract.

Capitalisation and estimated future maintainable income

This method is one of the most common methods applied in valuations for family law property settlements in the Family Court. The method is appropriate for the valuation of a controlling interest in a business. The business typically has a history of stable earnings on which future profit can be based.

Past performance and any factors likely to influence the business are considered so profit can be adjusted for any unusual amounts or transactions appearing in financial records which are not likely to occur again in the future. It also considers any profits available through the sale of surplus assets and factors in competition and other market norms and influences.


Personal Expenses, Accounting and Taxation

In many family run businesses, some expenses such as utilities and vehicles which overlap for business and personal use are funded from the family business.

This can be an area of conflict if it is not fully understood by both parties and carefully documented as to exactly how this will work after separation. Seek the advice of collaboratively trained lawyers and financial advisers to assess the most effective options available to you.

One of the issues to be resolved in final settlement is personal and business income tax liabilities. If the living expenses during separation for one or both of you are funded from business accounts, be aware there could be tax implications depending on the accounting methods used and the type of business entity.

Without an order or binding agreement in place, the receiver of the payment of benefit is likely to be liable for the personal income tax on these forms of income. If either you or your spouse are involved in a family business, take qualified advice to ensure that any payments are appropriately agreed upon, documented, and accounted for.

It is important that you have a full understanding of the accounting and taxation implications before signing any tax returns as it's difficult to appeal an unfavourable tax assessment retrospectively.


Third Party Involvement in Settlement

A third party to a family law matter may include individuals such as friends or relatives of either spouse, business associates or financial institutions.

The Family Law Act gives power to the Court to alter the rights, liabilities or property interests of a third party to a marital property settlement.

Generally, the Court takes a conservative approach when dealing with third party interests.

Occasions when a third party may become involved in a property settlement could include:

  • To prevent a bank or financial institution selling property in which one or both spouses have equity.

  • When property legally owned by a third party should rightfully be owned by one or both of the parties to the marriage.

  • When a family member, business associate or friend is owed money by either party to the marriage.

  • If there are insufficient assets in the net asset pool to settle the matter without using assets owned by a third party.

  • When one party asks the Court to set aside a transaction which occurred to defeat a Court Order.

  • To alter the rights of a creditor of either party.

  • To order a third person to provide information or assist in carrying out the property settlement.

  • To restrain a spouse from taking action which may affect the entitlements of the other spouse.

When a there is a third party involved in family law matters, it is likely that proceedings will become far more time consuming and expensive than would otherwise be the case. The third party must be served with all documents and be given the opportunity to represent their case. The business dealings and financial status of the third party may be scrutinised and made public.


Loans from Family and Friends

The loans to or from family and friends are often informal. They are generally unrecorded and rely on the trust and relationship between the family members involved.

Examples of such loans include:

  • Where parents help their child and their partner buy their first home

  • Where siblings help each other out for short term emergency loans

  • Where parents lend money to a child to assist them with legal fees

  • Where members of family invest in a new business established by a member of the family.

Where the debts of the parties include an unsecured debt owed to family members, the Court may sometimes disregard the debt in the division of net assets in a property settlement.

Unless there was a formal loan agreement in place with a detailed repayment schedule, loans from family, especially those from parents to their child, are generally considered as gifts.

This means even though you may have legitimately incurred a debt, you may have to carry the debt personally and repay the loan from your eventual share of net assets or your personal income.

If you need to borrow from family or a third party for any reason before settlement is agreed, it's advisable to enter into a legally binding loan agreement with the lender.

Take advice to draw up a formal agreement stating the date of the loan, who the money was lent to, lent by, and for what purpose. Be specific about any security offered and the repayment terms. All parties should sign the loan document in front of a witness.

Following these guidelines will put you in a better position to submit the document as a genuine liability when you draw up your joint schedule of assets and liabilities for property settlement.

If you have existing loans from family or friends and you are considering separation, arrange to have the loan terms documented if this has not already been done. This will not guarantee the loan will be admitted to the property pool but it will increase the chances of proving the existence of a debt with documented terms.

If you are a parent who has genuinely not gifted, but loaned money to a child whom you are concerned may be heading for a property settlement, you are advised to formalise and document the terms of your arrangement.  

If the repayment terms lapse or have not been met, as the lender, be sure to follow up with a demand in writing or formal offer to restructure a new agreement. Failure by the lender to demand repayment when terms are not met is detrimental to proving the legitimacy of this type of loan.


Stamp Duty and Tax Liabilities

Properties are often sold and the proceeds split in order to reach a fair and equitable split of assets. It is also common for one party to retain a property and buy out the other spouse's share. These types of transactions can have financial implications which impact the overall settlement result for one or both parties.

In the case of real estate, Stamp Duty and Capital Gains Tax implications should be taken into account.

Stamp duty can be avoided when transferring one party's share in a property to the other if the parties:

  • File a consent order; or

  • The Court makes and order for a property split: or

  • The couple sign a Legally Binding Financial Agreement.

Selling or transferring a property may trigger a Capital Gains Tax (CGT) event. CGT is due when a property which is sold or transferred has increased in value from the purchase price.

It is possible to apply for Capital Gains Tax roll over relief but this can be complex and you should seek the advice of a tax specialist before signing a property settlement.

If you have a family business, trust or company, the tax obligations of the entities you are involved in must also be factored into the property settlement and an adjustment made to compensate for impact of these future liabilities on either party.

It is important to ensure you are fully aware of the personal tax liabilities of each party before entering into a property agreement of any nature.



When one spouse becomes bankrupt it does impact the way a court would deal with a property settlement. In most cases, almost all of their assets are held in trust (vested) by the Trustee in the Bankruptcy.

The assets a bankrupt person may be allowed to keep could include:

  • motor vehicles (up to a certain value)

  • tools of their trade (up to a certain value)

  • household furniture and other general home contents 

  • Superannuation

  • Life Insurance

It is possible for Trustees in bankruptcy to become a third party to the property settlement dispute as this allows the Court to consider the rights of the creditors as well as the claim to the pool of assets by the other spouse.

The Court can order the trustee to transfer vested property to the non-bankrupt.

The Court has the power to set aside a property settlement order or binding agreement if it was made when one of the parties was bankrupt or about to become bankrupt.

Pre-action procedures do not apply when one or both spouses are bankrupt.


Government Benefits

This is a listing of some of the Government Benefits which may be available to you. Payments and the criteria for eligibility are added and changed often, so be sure to check with the Department of Human Services - Centrelink website for the latest information.

If you are in crisis and need money immediately, investigate:

Centrelink Crisis Payment - A one off payment to help people who are experiencing difficult or extreme circumstances, including domestic violence.

Centrelink Advance Payment - This is a lump sum Advance Payment on your existing Social Security benefit payment of between $250 and $500 and may be available if you need some money to help pay your expenses. It is not an extra payment. You have to pay your Advance Payment back to Centrelink. 

Centrelink Special Benefit - You may get Special Benefit if you are in severe financial hardship, you are not able to earn enough income to support yourself and your dependants for reasons outside your control, you cannot get any other payment from Centrelink and you meet residency requirements.

Parenting Payment (Single) - Parenting Payment is paid to the person who is the main carer of a child and is to help with the costs of caring for children. If you are granted Parenting Payment (single) you will have compulsory part-time participation requirements from the time your youngest child turns 6 years of age. 

NewStart Allowance - Single parents are eligible for the Newstart allowance when your youngest child turns 8. You may be expected to apply for Newstart, rather than it be an automatic switch from the Single Parent Payment.

Family Tax Benefit Part A & B - Family Tax Benefit Part A helps you with the cost of raising children. Family Tax Benefit Part A helps families with the cost of raising children. It is generally paid for dependent children and dependent full time teen / young adult students under a certain age who are not receiving Youth Allowance or similar payments like ABSTUDY or Veterans' Children Education Supplement.  Note: If you have not applied for child support, or an exemption from seeking child support you may only get the base rate of Family Tax Benefit Part A. If you receive over a certain amount of Child Support, your Family Tax Benefit Part A may be reduced. Family Tax Benefit Part B gives extra assistance to sole parent families and to families with one main income where one parent chooses to stay at home or balance some paid work with caring for their children. If you are a single parent, you can get the maximum amount of Family Tax Benefit Part B provided your income is $150,000 per year or less. Shared Care may affect your payment.National Hardships Register - The National Hardships Register negotiates debt waivers on behalf of many vulnerable consumers.  To be included on the NHR, a consumer must meet the Eligibility Criteria and make an application at no cost via a not-for-profit financial counsellor (counsellor).  The purpose of the industry funded NHR is to protect those consumers who are experiencing long-term and severe financial hardship from unnecessary debt collection activity.


Family Violence and Property Settlement

When applications for property orders are filed, both parties are ordered to undergo ‘pre-action procedures’ including participation in a Family Dispute Resolution (FDR).

In situations involving family violence, the Court may accept that it is not possible or appropriate for the pre-action procedures to be carried out.

Since the introduction of the 'no fault' divorce in 1975, generally a person will not be compensated in the property split for their partner's bad behaviour. However, the Court has the authority in cases of domestic violence to find that contributions made by a party whilst suffering domestic violence, particularly ongoing and severe domestic violence, are to be considered more valuable because of the arduous circumstances in which they were made.

Family violence is one of the few circumstances taken into account which may result in compensation to the victim in the overall property settlement.


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