How to finalise your property matter without going to court

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Property settlement can quickly become one of the most expensive parts of a breakup, especially if your matter ends up in Court. However, there are ways to finalise your property matters without litigation, saving time, money, and emotional strain.

Understanding Property Settlement

Property settlement involves dividing all assets and debts of the parties which are obtained or incurred jointly and as individuals. This can include:

1. The family home
2. Bank accounts and cash
3. Investments and businesses
4. Vehicles, jewellery, and valuables
5. Superannuation
6. Loans, mortgages, credit card debts
7. Trusts and inheritances

It doesn’t matter if you were married or in a de facto relationship. You may still be entitled to a property settlement, and the property does not need to be in both names. Even if you earn less or have minimal financial contribution, you may still have rights depending on various factors.

The Importance of Timing

Under the Family Law Act 1975 (the Act) there are time limits in which property settlement must take place:

• Married couples must make their property settlement legally binding or initiate court proceedings within 12 months of divorce.
• De facto couples have 2 years from the date of separation.

Failing to act within these limits may require court permission to proceed, which isn’t always granted.

How to Settle Without Going to Court

The most effective way to save money and avoid having to go to Court is to reach an agreement  with your former partner before involving lawyers. Open and respectful communication can pave the way for amicable resolution. Start by identifying what’s most important to you, whether it’s retaining the family home, keeping a specific asset, or ensuring a fair superannuation split.

If you’re unable to negotiate directly, there are alternative dispute resolution options available to assist you with these discussions. Some of these services include:

• Mediation/Family Dispute Resolution (FDR)
• Collaborative Law
• Private Mediation involving both parties and their lawyers

Making Your Agreement Legally Binding

Once an agreement is reached, it’s critical to make it legally binding to prevent future disputes. This can be done in two main ways:

1. Consent Orders

Consent Orders are formalised by the Family Court and have the same legal effect as orders made by a Judge.

• You and your ex (or your lawyers) prepare an Application for Consent Orders (ACO) and Consent Minutes of Order (CMO).
• These documents outline your financial positions and the agreed division of property, assets, and superannuation.
• The Court reviews your application to ensure it is just and equitable.
• If approved, the Orders are sealed by the Court without you needing to attend a hearing.

For more information on Consent Orders, please see our article What are Consent Orders?

2. Binding Financial Agreement

A Binding Financial Agreement (BFA) is a private contract between parties that does not require court approval but must meet strict legal standards.

• Each party must obtain independent legal advice and have their lawyer sign a certificate confirming this.
• BFAs can be entered before, during, or after a relationship.
• This option can be useful for those seeking privacy in their affairs or who are proposing atypical arrangements.

Informal Agreements (and Why They’re Risky)

You may choose to make a simple, informal agreement with your former partner without legal involvement. While this may seem easier and cheaper in the short term, informal agreements are not legally enforceable, and one party may later make a claim in Court.

To protect your future financial position, it’s strongly recommended to formalise any property settlement through a BFA or Consent Orders.

What Factors Determine a Fair Settlement?

If your matter does go to Court, a Judge will assess what is just and equitable based on:

• Each party’s financial and non-financial contributions
• The current value of all assets and debts
• Contributions to the family (e.g., raising children, homemaking)
• Future needs (e.g., age, health, income capacity, care responsibilities)

No fixed formula applies as each case is assessed individually.

Superannuation

Superannuation is treated as a unique asset under family law. It can be:

• Valued independently
• Split between parties as part of the settlement

However, split super remains inaccessible until standard retirement conditions are met. If your agreement includes superannuation, ensure your lawyer takes the required steps to notify the trustee of your super fund, so the agreement can be implemented correctly.

Why Legal Advice Matters

Even if you and your former partner get along, getting legal advice is essential. A family lawyer can:

• Help draft Consent Orders or BFAs properly
• Ensure compliance with legal requirements
• Assist with superannuation splitting logistics
• Protect your current and future assets

While separation and property division can feel overwhelming, they don’t have to involve bitter court battles. With the right approach, clear communication, the right legal advice, and formalising your agreement appropriately, you can secure a fair, enforceable property settlement while avoiding the expense and stress of litigation.

For a more detailed advice on your specific circumstances, we invite you to contact our team.