When a relationship ends, one of the biggest concerns is how property, finances, and debts will be divided. What is a property settlement is a common question for separating couples, and understanding the legal process can help reduce uncertainty and protect your financial future. In Queensland, property settlement is governed by Australian family law and aims to achieve a fair outcome based on each family's unique circumstances.
What Is a Property Settlement?
What Is a Property Settlement? It is the legal process of dividing assets, liabilities, superannuation, and financial resources after the breakdown of a marriage or de facto relationship. A property settlement is not simply a 50/50 split. Instead, the court or the parties consider several factors to determine what is just and equitable.
What Assets Are Included?
A property settlement may include:
Family homes and investment properties
Savings and bank accounts
Superannuation
Businesses and company interests
Motor vehicles
Investments and shares
Debts, loans, and mortgages
All financial assets and liabilities should be disclosed to ensure a fair outcome.
How Is Property Divided?
The Family Court considers several factors when determining a property settlement, including:
Financial contributions made by each party
Non-financial contributions, such as caring for children or maintaining the home
Future financial needs
Age and health of both parties
Income and earning capacity
Each case is different, which is why obtaining legal advice is important before reaching an agreement.
Why Legal Advice Matters
Many people believe they can resolve everything with a simple verbal agreement. However, without proper legal documentation, an agreement may not be legally enforceable. A lawyer can help prepare Consent Orders or a Binding Financial Agreement that protects both parties and minimises future disputes.
Understanding What Is a Property Settlement early allows individuals to make informed decisions, avoid unnecessary conflict, and achieve greater financial certainty after separation.
Frequently Asked Questions
1. What is a property settlement?
It is the legal division of property, debts, and financial resources after separation or divorce.
2. Is property always divided equally?
No. Australian courts aim for a fair outcome based on individual circumstances.
3. Does superannuation form part of a property settlement?
Yes. Superannuation can be included and divided between parties.
4. Can de facto couples apply for property settlement?
Yes, eligible de facto couples generally have similar rights to married couples.
5. Do we need to go to court?
Not always. Many matters are resolved through negotiation or mediation.
6. How long do I have to apply?
Time limits apply, so obtaining legal advice promptly is recommended.
7. Can debts be divided?
Yes. Mortgages, loans, and other liabilities are considered during settlement.
8. Is legal advice necessary?
Yes. Professional advice helps protect your legal and financial interests.
9. Can property settlements be formalised?
Yes. Agreements can be formalised through Consent Orders or Binding Financial Agreements.
10. Why choose an experienced family lawyer?
An experienced lawyer can guide you through the process while helping achieve a fair and legally secure outcome.
Divorce causes a marriage to end legally. This is a bitter experience in anyone’s life. But before unraveling the facts of divorce let’s get to know about marriage first. Marriage is the union of two people by which they recognise their life together and have a happy sexual life.
But in legal terms, marriage is a contract between two people enforced by law. It is a social event that forms a family but there are legal consequences too. Starting from raising the children to protecting the family residence, inheriting from the other partner can be the legal consequences.
What is a divorce legally?
When one of the partners decides not to live together anymore feeling uncomfortable with the marriage, he or she can demand a divorce. But divorce is a legal term too. Divorce entails canceling all the legal responsibilities, hence dissolving the contract between a couple.
No-fault divorce;1975
The divorce rate was very high in Australia before 1975. According to the Australian Institute of Family Studies, The rate reached its peak in the 1970s at 4.6 per 1,000 residents. This rate was very alarming and had to be reduced. That’s why the Government of Australia, established new law in 1975. The Family Law Act 1975 established the principle of no-fault divorce. It also established a federal court to deal with family law issues. The Family Court of Australia quotes,” No-fault divorce means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.” This means the couple has to be separated for at least 12 months before applying for a divorce.
How to prove separation if the couple lives together?
The couple needs to stay separate for at least 12 months before filing for divorce. But they can still live under the same roof. For that, they have to break the marital relationship completely which may include:
no sexual activity
living in different rooms
not having meals together
having separate bank accounts
not sharing household services
not representing themselves as married to acquaintances
Now let’s discuss the details of the divorce rate in Australia.
What is the divorce rate in Australia?
In the 1960s and the 1970s, the divorce rate was very high. It was about 4.6 persons per 1000 residents. But it declined when the Family Law Act 1975 was passed. This law supported no-fault divorce. And reduced to just 1.9 till 2016. But it raised again in 2017 up to 2.0. Hence the divorce percentage in Australia has reduced.
Another reason for the decline of the divorce rate in Australia is late marriage or marriage between same-sex.Same-sex marriage is now legal in Australia. In the first 6 months of 2018, 99 percent of marriages were between same-sex.
The divorce rate was 40% which has been constant for many years. But due to the corona pandemic, it has been a rush to the courts since this summer. But new statistics show, in 2019 the divorce rate has been highly increasing and reached around 47%. And Brisbane has registered 30% more divorces already by the summer of 2020.
From these studies, it is clear that a pandemic affects marriages severely.
Duration of marriage:
The largest proportion of couples separating and then divorcing are those who have been married 9 years or less, which is about 43%.
The couples who had been married for 20 years or more are highly encouraged in separation. In 1990 it was 20% and by 2010 it increased to 28%.
At what age couples are divorcing?
In 2016, the divorce rate was highest during the age 25-29 for both men and women. The couples have a steady relationship in their 40s.After 55, the couples become less likely to divorce.
Divorces involving children:
The amount of divorces involving children under 18 years has been decreasing. In 1975, the proportion of divorces involving children under 18 years was 67.6%. It decreased over time and became 47.1% in 2017. The reason behind this is the rise of divorces in short-term marriages.
Have same-sex marriages affected the divorce rate in Australia?
After the changes in Marriage Act 1961 same-sex marriage is now legal. There were 3,149 same-sex weddings were registered in Australia till 30th June 2018. And they can also get divorced but not many divorces are reported from these couples.
What are the reasons behind divorces?
People go into a marriage with so much hope. They decide to get married when they discover themselves in a comfortable relationship. It indicates the perfect bond between two persons. So, what causes that perfect bond to break apart? Why do they go for a divorce?
The Australian Divorce Transition Project categorised the reasons behind divorce into 3 dimensions. They are ‘affective issues’, ‘abusive reasons’ and ‘external pressures’.
An Australian study reported percent of divorces to blame “affective issues”. These affective issues are:
Problems of communication 27%
Lost connection 21%
Trust issues 20%
The other causes of divorce in Australia can be:
Abuse either physically or emotionally 7.4%
Abuse via drugs or alcohol 7.4%
Financial issues 4.7%
Work pressure 2.7%
Interference of family 0.6%
Health issues 4.7%
Tips for a long term marriage
Treat marriage as a long-term commitment
Prioritize your partner’s need
Respect your partner
There should be no trust issues
Maintain a happy sexual relationship
Cooperate with your partner
Be willing to change
Maintain equity
Manage time for each other
Support the decision made by your spouse
Avoid fighting unnecessarily
How long will it take to finalise the divorce?
Normally it takes 4 months to procure a Divorce Certificate or court order. It may take longer if there are other difficulties. Remarriage should not be planned before the divorce is finalised.
Grounds to file for a divorce:
prove that the couple has been separated for no less than 12 months of period.
the couple has been married for more than 2 years.
attended the required counselling with the family court if married for less than 2 years.
no fault of any of the spouses is needed.
at least one spouse must be an Australian citizen, domiciled, or resident in Australia for 12 months.
What is the procedure to get a divorce?
Getting a divorce is not the same anymore. That is the reason that the divorce rates in Australia have reduced. If you are thinking to get a divorce in Brisbane then Aylward Game can help you easily. Read the points below to get an idea about getting a divorce.
Live separate lives: Before applying for a job you must separate for at least 12 months. You can get back in touch without re-starting the 12 months for about 3 months. For instance, if you have lived separated for 4 months and again got together for 3 months you will only have to live 8 months separately to complete the 12 months.
You can live separately under one roof: You can share the same roof even when you are separated. The court will check if you are having sex, sharing meals, or sharing bank accounts. Your relatives should believe that you are separated.
Remarrying: Don’t think to remarry until the divorce is finalized. Don’t make quick plans. You can get married once the divorce is granted.
Property and children’s arrangement: The divorce will not resolve the property or children’s issue. You will have to file a separate case for this issue.
Married for less time: If you are married for a small time and still demanding a divorce. Then you should visit the family counselling. Get a certificate from them and submit it to the court.
When applied for the divorce, do I have to attend the court hearing?
It depends on some conditions. You may or may not have to attend the court hearing. Let’s have a look at them:
If you don’t have any children under 18 years. Then you will not have to attend the court hearing; it applies on both sides.
If a joint application is applied then you will not have to attend the court hearing, even if you have children under 18 years.
If a sole application is applied then you may have to attend the court hearing on having a child under 18 years.
How much will a divorce cost in Brisbane?
The typical cost of a divorce consists of legal costs and court fees. The amount of both fees is based on the procedural value, which depends on the income and assets of the spouses. A general figure is therefore not possible.
However, it costs $890 for every hearing. Usually, each spouse pays their own lawyer’s costs plus half the court fees. In this case, the 50% sharing of the legal fees should be contractually agreed in advance utilising a cost-sharing agreement between the spouses.
If this is the case, each spouse only pays half of the costs otherwise incurred. If you want to get a divorce from Brisbane, you shouldn’t be afraid of the divorce costs. If the financial means are not sufficient for a divorce Qld, the court and legal expenses will be covered by the state – and the chances of this are good.
How can Aylward Game help?
Though Australia’s divorce rate has declined some issues can demand a divorce. We can help you in many ways to solve the issue. For more information on your specific matter, please don’t hesitate to contact one of our experienced Brisbane, Gold Coast, and Sunshine Coast Family lawyers at Aylward Game Solicitors.
It has long been the case that fault or behaviour on the part of either person is not relevant to the granting of a Divorce in Australia.There is one ground for the grant of a divorce which is that a marriage has irretrievably broken downand the only evidence in support of that is that the parties have lived separately for at least 12 months prior to the application for divorce is made.
With regards to the basis for a property settlement, the conduct of either spouse is very unlikely to be relevant. (We often get asked if this is the case, and in the majority of situations, conduct is simply not a relevant factor).
Whilst the development of Australian law owes much too English law in this respect, there is a difference between the position in Australia and that in England and Wales. At the time of writing this article (July 2018), a case is proceeding to be heard in the High Court in Englandand Wales in which the wife is attempting to overturn on appeal the decision made by two lower Courts to refuse her application for divorce.
Marriage divorce
In this unhappy situation, the parties were married in January 1978 and they separated in February 2015. The wife applied for a divorce on the basis of her allegations of her husband’s unreasonable behaviour. In England and Wales a divorce application can only be made on one of five grounds which are;
Unreasonable behaviour;
Adultery;
Two years separation with consent;
5 years separation without consent;
Desertion;
Even though the wife herself admitted that she had had an affair, she could not use that as the basis of her petition for divorce. She, therefore, alleged unreasonable behaviour on the part of the husband.
Both parties don’t agree…
However, the husband appears to take the view that he does not wish to be divorced, notwithstanding his wife’s conduct, and he has chosen to defend the application for divorce, so far with some success. The judge who dealt with the case in the first instance described the allegations of unreasonable behaviour as, and I quote, ‘anodyne, flimsy and lacking beef’. The Supreme Court of England and Wales is the highest Court and therefore the last chance for the wife to appeal the decision to refuse her application for a divorce.
Whilst there may be ways in which the Family Law system in Australia could be improved, at least in Australia it is not necessary for the parties to a marriage to make allegations of unreasonable behaviour or adultery if they wish to get a divorce.
For straightforward, down to earth honest family law advice, contact the team atAylward Game Solicitors. Call 1800 217 217 for more information or advice on your matter.
