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Property settlements
Married couples
It can be difficult to identify all your assets so that you can divide them in a
way which is fair to both parties. The Family Law Act sets out what is
considered. If you reach a property settlement out of court this can be formalised
in court by filing a consent order or property order. If you are unsure of what
a fair outcome is then you may need to seek legal advice before you can negotiate
an agreement. An accredited Family Dispute Resolution Provider can also help
you reach agreement or the court can decide for you (but this can be an expensive
and stressful approach).
Research shows that in situations with family violence you are more likely to get a fair
property settlement if you engage a solicitor who can assist you to safely seek a
settlement through the courts.
When you separate you are responsible for any debts that are in your name including joint
debts or debts guaranteed by you. The court can make an order relating to who pays debts
and can order the responsibility for a debt to be altered.
The Family Law Act 1975 now allows
superannuation to
be split at the end of your marriage.
Except for in situations involving domestic or family violence, if you
go to court for a
property settlement you will need to show you have made a genuine effort to resolve your
property dispute through a dispute resolution or
mediation process
before starting a case. The court won’t necessarily divide your assets up equally.
They will look at each person’s contribution and their future needs.
De facto (including same sex) partners
De facto (including same sex) relationship property matters are currently dealt
with under state or territory law. However, recent changes to the Family Law Act
mean that de facto property matters (including same sex de facto couples) will be
dealt with by the Family Court from 1 July 2009. It is recommended you seek independent
advice from a solicitor if you are in this situation.
Capital gains tax
Capital gains tax (CGT) applies on the transfer of some assets, but you may not have to pay it if you meet certain conditions. The CGT consequences may even affect decisions about who gets what. Therefore, you may want to get professional advice about the potential tax consequences before dividing up any assets.
There is information on the Tax Office’s website. For other assets, search under ‘marriage breakdown’.
