Four Important Facts You Need to Know About Settlement

Courtney Barton 1. What is a Property Settlement?

When a marriage or a de facto relationship ends, the parties should always finalise their financial ties with one another.  This may involve the transfer of ownership of real estate, cash, superannuation or other property from one party to another.  For example, if the matrimonial home is in joint names the parties may agree that the house be sold and the proceeds divided. Alternatively, the parties may agree that one party receives the house and makes a cash payment of some nature to the other party to ‘buy out’ their interest.

When you are separating, it is important to obtain legal advice from a Solicitor specialising in family law, in order to determine your entitlements.

2. How do I formalise our property settlement?

Any agreement reached between you and your former partner should always be formalised (recorded legally).

There are two ways of recording a property settlement agreement between two separated parties:

  1. A Consent Order; or a
  2. Binding Financial Agreement.

A Consent Order is an Order which both parties have agreed to and the Family Court approves before making the Order, to ensure it is just and equitable.

A Binding Financial Agreement is an agreement between parties which has not been scrutinised by a Court to ensure it is just and equitable however the parties must consult with a Solicitor to make the agreement valid.

You should talk to your Solicitor about which form of agreement is right for you.

3. Why is it important to formalise your property settlement?

There are several reasons:

  • A Consent Order & Binding Financial Agreement are legally binding. This means that if the other party does not comply with the agreement, you have recourse to the Court to enforce compliance of the agreement.
  •  It finalises your financial relationship with your former partner. This means that your former partner cannot make a further property settlement claim against you.

4. Why is it important to do your property settlement promptly after you separate?

If you do not finalise your property settlement promptly after separation, this means your financial ties with one another have not been severed and you leave yourself open to a property settlement claim being made against you in the future, subject to relevant time limitations.

The value of the asset pool is not the date of separation it is when you make an agreement or when a Judge determines your matter.

This means that if your super interest increases, or you acquire a new asset or you improve the value of an asset post separation, but prior to a property settlement, it forms part of the property pool to be split between you and your former partner.

You should not leave yourself open to your improved superannuation entitlements,  or assets acquired/improved by you post separation,  forming part of your  property settlement.

Alternatively, if your former partner sells an asset or wastes away funds in the property pool, post separation, and applies the income for his/her own benefit, the property pool is reduced therefore reducing your entitlements. This is because the Court cannot deal with assets that no longer exist.

The only caveat to the above is that the Court has discretion to take into account financial contributions of the parties or wastage of matrimonial assets post separation.

It  is in your interests to formalise your property settlement sooner rather than later so that you can re-establish your financial position without a potential property settlement application hanging over your head in the future depending on time limitations.

The Importance of Engaging a Family Lawyer

Angela Tondelstrand DSC_8770Angela Tondelstrand, Principal Lawyer of STOLaw, part of the Slater and Gordon Group at North Lakes, explains the importance of engaging a lawyer when separating and that not all matters will end up in court if all appropriate avenues and steps are been taken.

Q1. Why is it important to engage a lawyer in the early stages of separation?  So that you can be aware of your rights and responsibilities upon separation, the likely effect of changes in circumstances, and can take steps to protect your rights if there is a risk that time and changing circumstances can have a negative effect.

Q2. How can a lawyer assist someone going through a separation? By advising a party of their options, tailored to the circumstances of the client, whilst also informing of the various opportunities, risks and costs that those options pose.  The lawyer would then follow the client’s instructions to navigate a resolution, usually by negotiation with the other party.

Q3. What is the most important factor/s to consider when separating? Obtaining timely advice from a specialist legal advisor who is not afraid to tell you what you need to know, and not necessarily what you want to hear.

Q4. There is a common misconception that seeing a lawyer will mean you will have to go to court. Is that correct? Absolutely not!  In my experience most matters do not require a court process to resolve, and except in limited circumstances, lawyers should attempt negotiations if reasonably and practically possible, to avoid unnecessary waste of a client’s time and money.

Domestic violence – the real ‘emergency’ facing Australia

Leisa ToomeyThis week has tipped the scales further for serious and immediate intervention for people in domestically violent situations and even as I write this another domestic incident has taken place in Victoria.

Whilst I understand the need for the Government to concentrate on drug related issues such as the ice epidemic, the real emergency is in our homes and those toxic relationships that are tearing apart families and placing untold strain on the resources available to assist people in crisis.

There are many reasons people don’t leave their very, very difficult home circumstances from a misplaced sense of loyalty to fear of the unknown which of course is understandable.  Now more than ever its imperative focus on offering a safe haven without the red tape that currently exists for emergency accommodation.

Domestic violence has become our national emergency, not the budget, and until we as a nation concentrate on supporting families in crisis we will continue to see the tragic types of incidences from this week alone.

As lawyers we are conscious of assessing people in crisis and learn to pick up on what is not being said rather than what is being told to us by our clients who are considering separation or are separating.

It can become abundantly clear that some clients don’t realise they are in the middle of something that can lead to tragic consequences.  We as lawyers can only guide our clients but what would make our role easier in providing advice to clients in these circumstances is a proper government frame work that can offer real hope to break free.

If you need help you can contact DV Connect via 1800 811 811 or if you are in danger now call 000.

Leisa Toomey is a Practice group leader of Schultz Toomey O’Brien Lawyers – part of the Slater & Gordon Group. She is an Accredited Family Law Specialist with the Queensland Law Society

New York Resort – A Place for Divorce

DivorceA famous resort in New York ‘Saratoga Springs’ Gideon Putnam Resort which is known for its lavish weddings is now expanding its business into divorces.

The venue will now cater for divorces where couples can pay a flat fee of $5000USD for the weekend and they will be provided separate rooms and work with a mediator to settle their divorce with a signed agreement.

“Practically, they are divorced after signing on Sunday,” said founder Jim Halfens. “After signing, all work is done and we send it to a judge who only puts a stamp on it to make it official.”

He has said most of the clientele will most likely be from the New York areas which are looking at a speedy divorce. However any US citizen is are able to participate as long as they agree to use the mediators and lawyers that will be provided.


If you are thinking about getting a divorce, contact our team of family law experts today. 1300 STOLAW or fill out a form on our website

Divorce is costing us $14 billion per year

DivorceA recent article on has said that divorce and relationship breakdowns are now costing the country more than $14 billion dollars per year in court costs and government assistant payments. This figure is now $2 billion more than it was only two years ago.

Social Services Minister Kevin Andrews said they are going to examine different strategies to assist with lowering the divorce rate and look at various means to identify vulnerable children and young people.

Mr Andrews has confirmed he will complete an overhaul of the early intervention strategies to assist with strengthening Australian families.

This seems like a very important step considering almost 50,000 people get divorced each year in Australia and the rate of divorce is now on the rise again.

Read more about this article on

If you are experiencing a family situation, please contact our Family Law team or 1300 STOLAW.

Latest Marriage and Divorce Statistics

Registered marriages, 2012 (annual change):
Queensland …………………………………………….. (up)  2.8%
Australia ………………………………………………….. (up)  1.2%

Registered divorces, 2012 (annual change):
Queensland …………………… ……………………(down) 0.7%
Australia …………………………………………………..  (up) 2.0%

Source: ABS, ABS 3310.0, released 27 November 2013.

Marriage and Divorce Stats 2012






If you have a family matter, please contact our friend Family Law team today.

What are the laws regarding informal post-separation parenting arrangements?

Post-Separation Parenting PlanIt is quite commonplace for parties who have separated to agree on their own parenting arrangements for their children. This way the parties can save on costs associated with the formal legal process and the emotional side of the situation.

Parties who wish to privately arrange their post-separation parenting can do so in writing which then takes the form of a parenting plan. However, parties do need to bear in mind that these parenting plans are generally not legally enforceable.

The formal requirements for a parenting plan are set out in Section 63C(2) of the Family Law Act 1975 (Cth) (the Act) and states the following requirements must be met:

  • the plan must be in writing;
  • the plan must be signed by all parties;
  • the plan must be dated;
  • the plan must deal with one or more of the following: the person or persons with whom the child shall live with; the time the child is to spend with the other person or persons; the allocation of parental responsibility for the child; if two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made when exercising the responsibility; the communication the child is to have with another person or other persons; maintenance of the child; the process used for resolving disputes about the terms or operation of the plan; the process to be used for changing the plan to take into account the changing needs or circumstances of the child or the parties of the plan; any aspect of the care, welfare, development of the child or any other aspect of parental responsibility; and
  • the plan must not be made under any threat, duress or coercion.


Divorce Statistics

Did you know many divorces occur to couples with children under 18 years old? However, the proportion of all divorces that involve children has declined since the mid 1960s from 65% in 1966 to 56% in 1990, 53% in 2000, and 48% in 2012. In 2012, 44834 children under 18 years experienced the divorce of their parents. (Source:

Divorce Statistics

Couples divorcing after long marriages

Family LawAccording to information released by the Australian Institute of Family Studies (AIFS) in May 2013, there has been an increase in the number of divorces after twenty or more years of marriage.

The number of couples divorcing after twenty years has increased from 13% in 1990 to 28% in 2011.

Professors Alan Hayes, AIFS’ Director stated “Divorce trends have been heavily influenced by changing social norms about remaining in unhappy marriages. There is far less social stigma today about ending a marriage and women are less reliant on men for their financial stability.”

He has also said that a number of couples filing for divorce are waiting until their children are old enough before they do so. Therefore; they have seen a decrease in the number of divorces involving children less than 18 years.

This Infographic by Watts McCray Lawyers, provides some interesting information regarding marriages, divorce & de facto relationships in Australia.

If you are experiencing hard times with a family situation, separation or divorce please contact our family law team today, they will be more than happy to assist you.

Top 10 Reasons for getting a divorce

Leisa ToomeyGetting a divorce is a painful but not unexpected occurrence in today’s world but for most of the 20th century this was not the case.  At the start of the 20th Century, there was a slow but steady rise in the crude divorce rate (the number of divorces in a calendar year per 1,000 population), increasing from 0.1 divorces per 1,000 population for each year between 1901 and 1910, to 0.8 divorces per 1,000 population between 1961 and 1970. According to a recent report released by the Australian Bureau of Statistics[i], the introduction of the Family Law Act 1975 was by far the most important contributing factor involved in the higher divorce rates in the latter quarter of the century.  The Family Law Legislation, which came into effect on the 5th January 1976, requires only one ground for divorce – irretrievable breakdown of the marriage, measured as the separation of the spouses for at least one year.   It was the 1970’s and a time where, all over the world, changes in technology and lifestyles were happening faster than ever before and this new legislation was about to be embraced by a society that, until then, had few options when faced with an unhappy marriage.

Following the implementation of this law, there was a large increase in the divorce rate in 1976. The rate then declined over the next three years as the backlog of applications was cleared. Since then, the crude divorce rate has remained between 2.2 and 2.9 divorces per 1,000 population.  In 2008, the crude divorce rate was 2.2 divorces per 1,000 population.

Interestingly, in 2008, 6.0% of divorces involved separation within the first year of marriage, 32.7% within the first 5 years and a further 21.7% were separated within 5 to 9 years of marriage. Of divorcing couples in 2008, 16.8% were married less than 5 years, 24.6% between 5 and 9 years and 58.6% were married for 10 years or more. Around 17.2% of divorces occurred to couples who had been married for 25 years or more.

So, bearing all of this in mind, what are people citing as the most common cause of their marriage breakdown? From my own experiences in Family Law I have listed (in no particular order) the ten most common reasons people seek a divorce:

  • Financial Issues
  • Infidelity
  • Communication Breakdown
  • Physical, Psychological, or Emotional Abuse
  • Sexual Incompatibility
  • Boredom
  • Religious and Cultural Strains
  • Child Rearing
  • Addiction
  • Differences in Priorities and Expectations

There are other reasons which come up, but less so than the ones listed above.  Interfering in-laws, controlling behaviour by a spouse and extreme fatigue are other reasons couples cite when ending a marriage.