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.

Protecting your property

Leisa Toomey Leisa Toomey, Practice Group Leader of STOLaw, part of the Slater and Gordon Group 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?  To understand your rights and obligations and to ensure you make an informed decision on matters regarding children and property settlement.

Q2. How can a lawyer assist someone going through a separation? By providing relevant advice and guide them through those things that have to be considered to ensure a fair and just outcome for them.

Q3. What is the most important factor/s to consider when separating? Seeking out skilled and informative advice from a lawyer that specialises in this type of work to understand what options are open to you to resolve your matters.

Q4. There is a common misconception that seeing a lawyer will mean you will have to go to court. Is that correct? No, this is not correct. Lawyers in this area of law should always investigate settlement prospects through mediation to avoid unnecessary expense and the wasting of valuable time for the client.

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

Tips for reducing family conflict at Christmas

Christmas with FamilyChristmas is a wonderful time of year when many of us are celebrating with our friends and families from near and far however, although this is a joyous time it can also bring with it stress, frustration and family conflicts.  It can also be a sad time of year if children have to be away from their parent/s for certain reasons.

According to the Salvation Army Counseling Service they have said “Christmas is a time for letting go of the past and enjoying the special moments that come with this important day. It’s best to not stir up the past. Christmas is just not the right time to bring up old problems and issues. You can always deal with the ‘unsaid problems’ later on when the atmosphere is befitting for sorting out things. If any issues arise during Christmas, it’s best to be assertive rather than taking on an aggressive stance. This way you’ll get your point across without ruffling any feathers.”

Try and make an effort to put those conflicts aside for one day and focus on the more important reason why everyone is together, to celebrate Christmas. Have fun, laugh, eat, drink and have a memorable time.

Do you have tips for reducing conflicts at Christmas?

Tackling Domestic Violence

Domestic ViolenceThe Labor government has said that harsher penalties are needed for perpetrators of domestic violence and those who breach domestic violence orders with acts of physical violence.

Labor has proposed increasing the jail term from two to three years and also proposed that victims are able to secure more support and assistance whether or not physical abuse was used.

Originally published as Labor plan to tackle domestic abuse.

Dividing property

shutterstock_150556397If your relationship breaks down, you may need to divide your property which includes yours assets (being things you own), liabilities (money you owe) and consider who gets what property.

Coming to an agreement about property is great, however seeking legal and financial advice is also recommended to ensure everything is settled. Most cases the law says it is favourable to resolve a dispute before having to go to court. If a decision cannot be made and the dispute cannot be resolved then you should seek assistance from family services.

We are here to help if you need assistance. Call our family lawyers today on 1300 STOLAW or visit our website

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)