What’s a Property Settlement?
A ‘Property Settlement’ is simply the term used to describe the process of dividing the assets, debts and superannuation entitlements of couples who have separated. Such assets, debts and superannuation entitlements are collectively known as ‘the property pool’.
Are all Property Settlements Legally Binding?
The short answers is no; the only way a property settlement in Australia can be legally binding is if it takes place via a Court Order or a ‘Binding Financial Agreement’.
So if you effect an informal property settlement (e.g. a distribution of assets, debts and superannuation pursuant to a verbal agreement with your ex), such settlement is not legally binding, and your ex may be able to claim more from you at a future time.
That doesn’t mean you should refuse to hand over less substantial items to your ex such as the lawn-mower or some bed linen, especially if doing so would cause conflict, but it does mean that you should be cautious about transferring more significant assets pursuant to anything but a Court Order or Binding Financial Agreement.
Can Separated Persons Agree on a Legally Binding Property Settlement?
Yes they can. Again, such agreement could be made legally binding via a Court Order (called a ‘Consent Order’) or a Binding Financial Agreement. Neither you, nor your ex, nor any lawyer, would actually need to go to Court to obtain a Consent Order or a Binding Financial Agreement.
This article was published by Kyle Barram on 16 February 2016. Kyle is a Townsville Family Lawyer. He has practised family law, amongst other areas of law, since 2009.
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