Divorce or separation can be a messy business. It’s often the case that when it comes to property, people are either taken off guard or are unsure how to proceed. This confusion can lead to costly mistakes and ultimately, you could miss out on the chance to protect and safeguard your future and your assets. 

Depending on your particular circumstances, you could need a de facto lawyer to help navigate property settlement. With that in mind, here’s everything you need to know about who gets what in a property settlement agreement. 

 What is a property settlement agreement?

A property settlement agreement is when assets and debts belonging to a couple are split up after separation. It’s important to remember that a divorce is not the same as a property settlement. Because they are different processes – you can actually file for a property settlement agreement before you are actually divorced. Everyone who has separated is entitled to a property settlement agreement if they file for the necessary application within the given timeframe and meet certain relationship criteria. 

How do I get a property settlement agreement?

There is a standard procedure that must be followed to finalise a property settlement agreement. Here are four main ways to get a legally binding property settlement agreement:

1. Court-Imposed Settlement

This is the most costly and time-consuming of all the options. It’s recommended that this be avoided wherever possible. A court-imposed settlement means you have not been able to reach a settlement and a court is asked to make this decision for you. 

 2. Consent Order

These are formal documents signed by both you and your former partner stating the agreement of sale of property, assets, and can include spousal maintenance and division of superannuation. It’s possible to apply for this kind of settlement option without going to court, however, this option still involves a lengthy application process and the Court’s approval that the agreement is fair and equitable. 

[H3] – 3. Separation Agreement through qualified independent lawyers 

This option avoids interaction with the courts and is far less agonising overall. Instead of the court deciding on the final outcome of the property settlement agreement – it’s ultimately up to you and your former partner to decide. This can either be done independently through your respective lawyers, or you and your former partner can prepare it yourselves. 

[H3] – 4. Self prepared financial agreement

It is possible to go DIY on this, but ultimately you’ll need an independent lawyer to verify your agreement at some stage. This way, you can prepare the documents yourselves and then contact a lawyer afterward to verify the property settlement agreement. 

Will my assets be split 50/50?

It’s a common misconception that assets are split 50/50. It’s just not the case. The Family Law Act actually has no specific mathematical calculation as to how assets should be divided. Therefore it’s done on a more discretionary basis. Ultimately the final decision will depend on the following factors:

• The value of your assets and/or debts – this can include superannuation, savings, and property
• Your direct financial contributions like wages, earnings, gifts, and inheritance 
• Non-financial aspects such as responsibility for children
• Age, health, future ability to earn

 De facto vs marriage 

Property settlement agreements apply to both separated de facto couples and married couples – whether they’re divorced or not. The family court in Western Australia can therefore make a decision based on de facto couples who have been in a relationship for over 2 years or have a child under the age of 18, or if one partner has made significant contributions – like buying a house for example. 

Do I have to go to court for a property settlement agreement?

You will only have to appear in court if you cannot agree on the terms of your property settlement agreement either independently or with lawyers. Going to court is always extremely expensive and time-consuming. Avoiding going to court can save days if not weeks of paperwork – not to mention the stress. If you have contact with a lawyer – they will be able to assist you in trying to avoid this scenario. 

Do I need a lawyer for a property settlement agreement?

Yes, you will. Even if you’re aiming to prepare your applications together, you and your partner will need to get your agreement formalised by a qualified lawyer before it can be made official. Having a lawyer isn’t only necessary, it can also take a lot of the stress out of preparing documents and drafting up applications and financial statements. A lawyer can help by

• Advising on the most suitable pathway forward in settling your property agreement
• Assist in drafting and editing the property settlement application
• Officiating the formal agreement 

Get qualified legal advice today 

Even if you’re thinking about separation, it’s important to get ahead of the game and ensure your future. Getting legal help is inevitable and reaching out early to qualified lawyers who can help you find a reasonable property settlement agreement will be your best shot at a good deal.

*This article does not constitute legal advice. To receive qualified legal assistance and advice on personal matters contact a legal professional. 

Edward Bertrand