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The most common questions people will have about property settlement after separation or divorce is:
How much will I get from the Property Settlement;
What is a Family Law Property Settlement and what does it involve?
After you separate at some stage it will be necessary to divide your property through a property settlement.
Property settlement includes assets, liabilities and financial resources.
Financial Resources include Superannuation and pension interests.
The definition of ‘property’ is very wide. It will include almost anything of value.
Property Settlement includes assets and financial resources such as (amongst other things):
As well as dividing the assets and financial resources, property settlement also involves the division of any liabilities.
Liabilities will include debts, loans, tax and stamp duty obligations.
All liabilities are considered whether they are in joint names or whether they are in the name of one spouse only.
Contrary to popular belief, in Australian law there no presumption or starting point that property should be divided between the parties on an equal (50% / 50%) basis.
There is not any rule of thumb as to how Courts will divide the property between the parties.
The Court will look at the particular facts of each case on its own merits and then make an Order they consider appropriate for the circumstances of that case.
An Order made by a Court is usually framed in terms of the percentage of the total property pool that each party will receive.
You may have heard of a friend's property settlement being 60/40, 60% to the wife and 40% to the husband.
This means if their net property pool (total assets & financial resources - total liabilities) was $800,000, then the wife would have received 60% of that being $480,000 and the husband would have received 40% being $320,000.
The Court will usually specify which assets each party will retain, whether any assets must be sold so that the proceeds can be divided and whether a party needs to pay a “cash adjustment” amount to the other party, so as to achieve the stated percentage property division.
In the example above, say the net property pool is $800,000 made up of assets, financial resources and liabilities of the couple as being:
The Court may divide that property pool 60%/40% in the wife's favour by:
You can read more about how Superannuation is split between married or de facto couples in a property settlement in the fact sheet How do I get some of my partner's Superannuation / Giving some of your Superannuation to your spouse in Property Settlement.
To understand what you may be entitled to in your property settlement or how much you may have to pay, read our fact sheet How do I work out how much I will get - how is Property Division decided – The 4 Steps.
You should also be aware of the time limits for doing your property settlement which is set out in the fact sheet What is the Time Limit to do a Property Settlement.
We have 16 fact sheets on different issues in Property Settlement. To see a list of all the fact sheets so you can read everything you need to know, click here to access our Property Settlement Section Page.
Michelle Beatty, Senior Lawyer
Other Questions answered in the Property Settlement Section
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