Property Settlements

Property Settlements

Family Law & Property Settlements

At WN Legal, our experienced team of Family Lawyers will have control of your property settlement matter from beginning to end. We understand the stressful nature of separation disputes, and endeavour to guide you through your difficult legal situation as efficiently and cost effectively as possible.

How long do I have to bring a claim?

Time limits do apply in relation to applying for property orders in the Family Court. A different time limit applies dependent on whether you were in a de facto or marital relationship. There are some circumstances in which a time extension may be granted, however it is imperative that you seek the advice of lawyer promptly should you wish to bring a claim.

What will happen to my property if I get a divorce or separate?

When you separate, or subsequently get a divorce, you are entitled to seek that the property of the relationship be divided between yourself and your partner. To determine the appropriate division of property after a marriage break-down or break down of a de facto relationship, our Family Lawyers will analyse four important steps.

Step 1: The net property of the parties

What constitutes as part of my property?

The net property that will be assessed will include, but is not limited to;

  • Businesses
  • Real Estate
  • Shares
  • Trusts
  • Superannuation
  • Savings
  • Motor Vehicles
  • Furniture

Any liabilities of the parties will also be taken into account, with this value being deducted from the total pool of assets, leaving us with a net property value. Once we have determined the net property value, our experienced family lawyers will determine your entitlements to the net property of the relationship.

What is not considered to be part of my property and will It be included as part of the property settlement of the relationship?

Future expectations under Wills, Discretionary Trusts and actions for damages for personal injuries are not considered as property for the purposes of Family Court proceedings, however these excluded types of property can be taken into account as a “financial resource” by the Family Court in determining what is a just and equitable split for both parties.

How is my superannuation divided?

In Western Australia, superannuation interests are a type of asset, different from that of standard property assets and are dealt with dependent on whether you were in a marital relationship or de facto relationship (link). You can find further information on this matter by clicking on this link.

Step 2: The contributions of the parties

The financial, and non-financial contributions of the parties, both directly and indirectly will be taken into account when determining how the property of the relationship is to be divided. Part of our role as your legal advisers is to provide the Court with appropriate evidence as to your contribution to the household whether you contributed to the relationship by looking after the children or by providing financial support to your family. 

What if I am the stay at home parent?

Your non-financial contributions to the household, during the marriage or de-facto relationship will be taken into account when assessing the division of your property. The role of the stay at home parent, or ‘homemaker’ is considered to be as important to the welfare of the family as financial contributions, therefore greater weight is apportioned to this role when assessing the property division.  

What if I am the main financial contributor to the household?

Your financial contributions to the household are in most cases readily calculable, and will involve assessing the history of your relationship. The Court will look to both direct and indirect financial contributions, such as the purchase or development of the property, or the day-to-day living expenses of the household.

Step 3: The ongoing needs of the parties

The Court will then take into account the parties ongoing needs, and the effect that a property order will have on the earning capacity of one or more of the parties.

What if I don’t have the same earning capacity as my partner?

It is common that there will be a disparity in the earning capacity of one of the parties, as one party has been out of the workforce for an extended period in order to raise the children of the relationship. If you are in this situation, you should not worry, the Court will make adjustments to the division of property to account for any disparity in earning capacity. These adjustments can be made on either a percentage or a monetary basis.

How will I continue to financially provide for my child or children after settlement?

If you are to be the primary caregiver of the child or children, the Court will take into account the provision of child support, past, present and future in order to assist you in raising the child or children and providing for their wellbeing.

Step 4: Whether the order posed is just and equitable

This requirement refers to Step 2 and Step 3 on this page, namely, the contribution and ongoing needs of the parties. The Family Law Court has a wide discretionary power to divide the property, in a just and equitable manner. The Court will not make any order unless it is satisfied that it is just and equitable to do so, as per Phillips v Phillips (2002) 168 FLR 438.

I know my entitlements to the net property of the relationship, how do I determine what is the most effective way of dividing the Property

WN Legal can refer you to astute financial planners who specialise in assisting clients during and at the conclusion of Family Court proceedings. They will assist you in determining what is the best way to divide the property pursuant to your entitlements in order to ensure you will achieve the best possible property settlement for your future.

Interesting Family Law Property Information

One common misconception is that the financial contributions to the relationship will be given greater weight in Court; this is incorrect. In the Marriage of Clauson (1995) 18 Fam LR 693, adjustments were made in the wife’s favour as, although the contributions by both parties were very different, the husbands being mostly financial, her domestic contributions to the household were treated as equally significant.

A personal item, such as an engagement ring, is generally excluded from property settlement negotiations. In Damiani v Damiani [2012] Fam CA 535, His Honour noted that the agreement between the parties for the wife to return the engagement ring to the husband and further be included in the husband’s asset pool was “contrary to the normal practice of excluding engagement rings from the balance sheet” (at para 122).

Whether a party’s expectation under a will forms part of the financial resources of the couple is subject to considerable judicial diversity. In White & Tulloch v White (1995) 127 FLR 105, the Full Court held that the expected financial resources of one party did not form part of the property pool as the testator (the person who has written the will) was still alive. It is appropriate to receive further legal advice from our Perth family lawyers if you believe that this is relevant to your circumstances.  

What are the costs involved?

At WN Legal, we do not “bill by the hour” and render an expensive invoice upon completion of our legal services. We will provide a reasonable estimate and endeavour to bill within the confines of our estimate, even if we are required to do extra work. At WN Legal, it is the quality of service and results that we pride ourselves on. Our Perth Family Lawyers are passionate and client focused in helping you achieve excellent results without expending unnecessary legal costs.

Please do not hesitate to contact WN Legal if you require legal assistance in this area of law. Our Family Lawyer, Kyran Borges Nunes, has a broad range of experience in assisting his clients all over Perth in applying and defending a variety of Family Court matters.