Dividing the Property

If your relationship ends, property may be divided between you and your former partner by agreement after negotiation, using a Mediation service or by litigation (going to Court.) Even if you are able to reach a property settlement without going to Court, it’s a good idea to get comprehensive family law advice before you start negotiating and once again before you sign off on any agreement.

If you and your former partner cannot reach agreement ...

... for a fair and reasonable settlement, either of you may apply to the Court for an order that the property you have accrued during your relationship (the property pool) be divided. Property includes assets (things owned by you) and liabilities (things you still owe money on). These can be owned individually, jointly (with another person or persons), or by a company or family trust. They include things such as the family home, investment properties, any family business, investments such as shares, insurance policies, superannuation, inheritances, cash, vehicles (motor/boat), artwork, jewellery as well as debts like mortgages, personal loans, credit card and the like.

It is a common misconception that if an asset is not in joint names it should not be included as an asset in the property pool ... 

This is incorrect.  It makes little difference who purchased an item, whose name the asset is in, or who is responsible for the debt. The Court is required to take into account all of the relevant factors in your case before reaching its conclusion. It does this by using the 4-step approach in which:
  1. The Court will first make a decision about defining the asset pool (property, liabilities and financial resources) to be considered and the values to be given to each item.
  2. Secondly the Court evaluates the financial and non-financial contributions each of the parties made to the attainment and preservation of the asset pool. It also evaluates each parties’ respective contributions to the welfare of their family if there are any children. The Court will assess those contributions in terms of a percentage.
  3. The next step will be for the Court to carefully consider each of the parties’ future needs, means and responsibilities, to establish whether any further alteration needs to be made to the percentages.
  4. The fourth and final step for the Court is to determine what decision and orders will provide a just and equitable division in all of the circumstances of your case.

Normally your property case will be before the Court on 2-3 occasions before a Final Hearing takes place ... 

Before the Court makes a final decision about property division it will require the parties and their lawyers to participate in a property mediation, known as a Conciliation Conference.  This Court event is ordered to occur prior to the final hearing.