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GJA Law – Sydney’s Trusted Property Settlement Lawyers

Property Settlement in Sydney

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For individuals and families in Sydney, the conclusion of a relationship—whether a marriage or a de facto partnership—often marks the beginning of a critical legal process: the division of assets. A property settlement is not merely an administrative task; it is a legal procedure that determines your long-term financial future.

At GJA Law, we understand that navigating this process can be complex and emotionally charged. We provide clear, strategic advice designed to demystify the law, protect your interests, and achieve a fair and lasting financial outcome.

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    What Is Property Settlement?

    A property settlement is the legal process of identifying, valuing, and dividing the assets, liabilities, and financial resources between two parties following the breakdown of their marriage or de facto relationship. Governed by the Family Law Act 1975 (Cth), this process aims to achieve a just and equitable division of property, not necessarily an equal one.

    Crucially, a property settlement is entirely separate from obtaining a divorce and involves distinct legal principles, evidence, and outcomes. Finalising this settlement, typically through a Binding Financial Agreement (BFA) or Consent Orders, provides certainty and a clean break, allowing both parties to move forward financially independent of one another.

    • Fantastic service. Always honest and clear in the advice being given. I have recommended others to GJA and will continue to do so.

      Rachel


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    Who Can Apply for a Property Settlement?

    Eligibility to seek a property settlement is extended to:

    • Married Couples: Parties to a marriage, either before or after divorce. Following a divorce, an application must generally be made within 12 months of the divorce becoming final.
    • De Facto Couples: Parties to a de facto relationship, including same-sex couples, that meets certain criteria under the Act. This typically requires a relationship of at least two years, or one involving a child, or where one party has made substantial contributions. De facto partners must generally apply within two years of the date of separation.

    It is important to note that both parties retain their legal rights to a settlement until it is formally finalised by court order or binding agreement, regardless of whose name assets are held in or who initiated the separation.

    What Property Is Included in a Settlement?

    The court adopts a broad and inclusive definition of the “property pool” or “asset pool.” It includes all assets, liabilities, and financial resources, regardless of:

    • When they were acquired (before, during, or after the relationship).
    • Whose name they are held in.
    • Whether they are located in Australia or overseas.

    Common components include:

    • Real Estate: The family home, investment properties, and vacant land.
    • Financial Assets: Bank accounts, shares, managed funds, and cryptocurrency.
    • Personal Assets: Motor vehicles, boats, furniture, art, and jewellery.
    • Business Interests: Ownership stakes in private companies, partnerships, or trusts.
    • Superannuation: Treated separately under a specific regime (see below).
    • Liabilities: Mortgages, personal loans, credit card debts, and tax liabilities.
    • Financial Resources: Assets not directly owned but from which a party benefits, such as an expectant inheritance, a discretionary trust, or a long-term loan to a third party.

    A cornerstone of the process is the duty of full and frank financial disclosure. Both parties are legally obligated to provide complete and accurate information about all aspects of their financial circumstances. Failure to do so can lead to severe consequences, including the setting aside of any agreement and adverse costs orders.

    How Property Settlement Is Determined: The Four-Step Legal Process

    The Family Court follows a structured, four-step approach to determine a just and equitable division:

    1. Identify and Value the Asset Pool: As outlined above, all assets, liabilities, and resources are identified and their net value at the date of settlement is determined, often with the assistance of expert valuers.
    2. Assess Contributions: The court evaluates the direct and indirect contributions of each party. This includes:
      • Financial Contributions: Initial savings, wage earnings, gifts, and inheritances.
      • Non-Financial Contributions: Such as physical labour in renovating a property.
      • Contributions to the Welfare of the Family: The often-overlooked role of homemaker and parent, which is given equal weight to financial contributions.
    3. Consider Future Needs: The court adjusts the percentage division from Step 2 based on factors outlined in Section 75(2) of the Act. These include age, health, income and earning capacity, care of children, and the financial effect of the relationship on a party’s career.
    4. Determine a Just and Equitable Outcome: The final step is to ensure the proposed division, resulting from the previous steps, is fair and equitable in all the circumstances of the case. This is the ultimate legal test.

    Property Settlement and Superannuation

    Superannuation is treated as property under the Family Law Act and forms a significant part of most modern asset pools. It can be split between parties without the need for the member to retire or satisfy a condition of release. Splitting can be achieved:

    • As a Base Amount: A specific dollar value is transferred.
    • As a Percentage Interest: A percentage of the future benefit is allocated.

    A superannuation split requires a formal Superannuation Agreement (within a BFA) or specific orders, and the trustee of the super fund must be joined to the process. It is a complex area where expert legal advice is essential to navigate valuation methods, tax implications, and preservation rules.

    Negotiating a Property Settlement

    The vast majority of property settlements are resolved without a judge’s determination. The law strongly encourages parties to negotiate a resolution through:

    • Direct Negotiation: Between the parties or their lawyers.
    • Mediation/Family Dispute Resolution (FDR): Using a neutral third-party mediator to facilitate agreement.
    • Collaborative Law: A structured process where both parties and their specially-trained lawyers commit to reaching a settlement without going to court.

    A successful negotiation can be formalised in two legally binding ways:

    1. Consent Orders: An application is made to the court, which reviews the proposed orders to ensure they are just and equitable. Once approved, they have the full force of a court order.
    2. Binding Financial Agreement (BFA): A financial contract that does not require court approval but must meet strict legal requirements, including independent legal advice for both parties before signing.

    Our Services

    GJA Law assists Sydney clients with a wide range of property settlement matters, including:

    • Reviewing and drafting contracts or agreements
    • Advising on legal rights and obligations
    • Negotiating terms or resolving disputes
    • Working with agents, financial advisors, or other professionals where necessary
    • Managing the process through to completion with accuracy and efficiency

    • Dealing with GJA was a great experience. I felt comfortable at all times with their advice. My situation and the process was explained in laymans terms. As a result they won the case for me.

      Nick

    Why Choose GJA Law?

    • Clear, practical advice tailored to your situation
    • Fixed-fee certainty for common matters and transparent time-costed support for complex issues
    • Decades of experience across property, estate planning, and family law
    • Early adopters of technology to streamline processes and reduce errors
    • A client-focused approach that prioritises your goals and peace of mind

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    Contact Us

    If you are dealing with property settlement in Sydney, contact GJA Law today. Our experienced lawyers will guide you through the process with confidence and provide the support you need.

    Common Property Settlement FAQs

    What is a property settlement and when does it occur?

    A property settlement is the legal process of dividing assets, liabilities, and financial resources after a marriage or de facto relationship ends. It can occur before or after a divorce and is entirely separate from the divorce process itself. A settlement is only final once it is formalised through Consent Orders or a Binding Financial Agreement, providing certainty and preventing future claims.

    Is property always divided equally after separation?

    No. Australian family law does not apply an automatic 50/50 split. Instead, the law requires a division that is “just and equitable” based on individual circumstances. The court considers contributions made by each party during the relationship, future needs such as health and earning capacity, and whether the final outcome is fair overall. Every case turns on its own facts.

    What assets are included in a property settlement?

    The property pool includes all assets, liabilities, and financial resources of both parties, regardless of whose name they are in or when they were acquired. This can include real estate, savings, investments, businesses, superannuation, debts, and even overseas assets. Full and honest financial disclosure by both parties is mandatory and critical to achieving a valid settlement.

    How does the court decide who gets what?

    The court follows a structured four-step process: identifying and valuing the asset pool, assessing each party’s financial and non-financial contributions, considering future needs, and ensuring the outcome is just and equitable. Contributions as a homemaker or primary carer are given equal weight to financial contributions. The process is holistic and not based on rigid formulas.

    Can property settlement be resolved without going to court?

    Yes. Most property settlements are resolved through negotiation, mediation, or collaborative processes rather than litigation. Once agreement is reached, it can be formalised by Consent Orders or a Binding Financial Agreement, both of which are legally enforceable. Avoiding court often saves time, cost, and emotional stress while allowing parties greater control over the outcome.

    Are there time limits for applying for a property settlement?

    Yes. Married couples generally have 12 months from the date a divorce becomes final to apply for a property settlement. De facto couples usually have two years from the date of separation. If these deadlines are missed, court permission is required to proceed, which is not guaranteed. Early legal advice is essential to protect your rights.

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