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


As of 1st January 2015, the Government has delivered South East Queensland  six family law services to asssist with separating and separted families prioritise their childrens needs.

The successful service providers are:

  • Family Relationship Centre Ipswich – Relationships Australia Queensland
  • Children’s Contact Service Ipswich – Relationships Australia Queensland
  • Children’s Contact Service Logan – UnitingCare Community
  • Children’s Contact Service Gold Coast – Relationships Australia Queensland
  • Post Separation Cooperative Parenting Gold Coast – Centacare
  • Post Separation Cooperative Parenting Sunshine Coast – UnitingCare Community

What is Separation?

SeparationSeparation is when you are no longer living together as a ‘couple’, but you still maybe living in the same house. Living together but being separated is called “separation under the one roof”.

If you are separated but still living under the one roof, you may need to provide proof to government organisations such as Centrelink.

In order to determine if you are separated under the one room, you may want to consider the following:

  • you sleep together
  • you have sex or sexual activity
  • you share meals and domestic duties (in a different way to when you were married)
  • you share money and bank accounts
  • your friends and family think of you as separated.

If you need legal advice regarding Separation, contact our Family Law team today on 1300 STOLAW or fill out a form on our website.

(Source: Legal Aid Queensland)

Bikie jailed over threats made to ex-partner and her son

jailA bikie will spend at least 2 years behind bars after threatening to kill his ex-partner and her young son while they slept. The man spent six-months terrorising her and her son, despite an intervention order being in place to protect the woman.

The couple separated in September last year after a 13 year relationship and he had already served time in jail for breaching intervention orders against her.

“I’m going to f—ing cave your head in and don’t think people will stop me,” he told her on one occasion in front of dozens of witnesses.

“Your days are numbered,” he told her in one and warned her to “order a coffin” in another.

The man is a serious violent offender with a history dating back to 1997.

He pleaded guilty to more than a dozen charges which include unlawful assault, criminal damage and threat to kill.

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.

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.


Teens and family separation

Father and SonDid you know that nearly 11,000 teenagers throughout Australia experience family separation?

When a family separates teenagers can be feeling a number of different emotions, these can include:

  • shocked
  • relieved
  • hopeful
  • angry
  • rejected
  • sad
  • confused
  • excited
  • distressed
  • scared
  • worried
  • irritable
  • happy
  • withdrawn
  • relaxed
  • insecure
  • ashamed


  • embarrassed
  • disappointed
  • guilty
  • loved
  • torn
  • lonely
  • normal


Emotions can shift and change and it is normal for this to occur. It is however, important to talk to friends or family to discuss these feelings as they will help you work through the situation.

A few suggestions that can assist with dealing with your emotions are:

  1. Talking to someone such as a friend or family member.
  2. Crying will let you release some of your emotions and there’s no need to be ashamed to cry.
  3. Write down your feelings. Expressing your emotions on paper can bring some relief and release some of the stress that might be building up inside.
  4. Ask your parents if there is anything you can do to help with the situation. Even if it is just taking on simple house hold duties to ease the pressure off your parents.
  5. Spend time doing things you enjoy. By taking part in your regular activities such as sport, catching up with friends, shopping, going to the beach can assist with taking your mind off the situation at hand.

Department of Human Services have provided a great guide called Family separation: a guide for teens, which can be downloaded here, and provides more information to teenagers going through a family separation.

Our Family Law team are always here to assist Family’s in times of separation. If you need to talk to someone to discuss a separation or divorce contact our team today.