10 Common Property Settlement Questions

1. Does the property of the relationship get split down the middle 50/50?

This is often a starting point. However, contributions that each party made at the start of the relationship, or marriage and then after separation are important as are contributions made during the relationship or marriage by way of gifts, compensation settlements or other windfalls. A party's capacity to earn income and other factors such as having the care of children are important. There are many factors to be taken into account.

2. Does my super get included in the property of the marriage?

Yes, super is included as an item of property.

3. How do we agree on a settlement without going to Court?

An Agreement can be reduced to writing and made as a Court Order by the Court. Alternatively, an Agreement can be drawn up which contracts out the power or jurisdiction of the Court to make Orders as well. (Known as a Binding Financial Agreement)

4. What if we can’t agree? Does this mean we have to go to Trial?

If you can’t agree then an Application has to be made to the Court. There is a compulsory conciliation stage involved. If agreement still can’t be reached, then eventually a day for trial will be set where each party will present their evidence to the Court.

5. What if we sign an agreement before JP?

Will that protect me? No. Unless it is a Court Order or a Binding Financial Agreement it will not protect you.

6. He had lots of debts at the start? Does that get taken into account?

Yes. Just as if a party had significant assets at the start will go in their favour in a property settlement, the party who had significant debts will go against them in a property settlement.

7. Can I keep my inheritance that I got during the relationship?

No. But it will be a factor in your favour in considering a property settlement.

8. Can I keep my compensation money?

No. But again it will be a factor in your favour in considering a property settlement.

9. My parents lent us money to buy the house. Do they get this money back?

If it is a loan, then it is a liability or debt to be taken into account in working out the net property available for division. The answer would be yes under these circumstances.

10. Can I get a superannuation split?

Superannuation splits are nearly always ordered. It is only the most exceptional of cases where a super split Order will not be ordered, such that one party would retain greater property in exchange for a superannuation entitlement.