Dividing assets after separation

At Vogt Legal, our property settlement lawyers help separating and divorced couples reach fair and practical financial outcomes.

Property settlement can be one of the most complex parts of family law. Unlike divorce, which simply ends the marriage, property settlement determines how a couple’s assets, debts, and financial resources are divided after separation.

Unlike a divorce, which simply ends a marriage, a property settlement deals with who gets what, including:

• The family home and investment properties
• Superannuation
• Vehicles, savings and personal debts
• Business interests and trusts
• Liabilities and debts

Most separating couples in Western Australia reach agreement privately or with the help of lawyers. When agreement is not possible, the Family Court can make property settlement orders dividing property between the parties.

A property settlement finalises financial ties between former partners. Once final orders are made, neither party can usually claim further assets or income from the other.

If you are separated and want to secure your financial future, our property settlement lawyers can help you resolve your property settlement dispute quickly and efficiently.

The five-step process

When the Family Court divides property after separation, it follows a five-step process described in Giles & Giles & Anor [2018] FCCA 194 at [35] and Rockman & Rockman [2014] FCCA 1966 at [84]:

1. Identify the parties’ legal and equitable interests in property.

The Family Court first determines what property each party legally or beneficially owns or controls. This includes all assets, liabilities, and financial resources, regardless of whose name they are in.

2. Decide if it is just and equitable to adjust those interests.

The Family Court then considers whether it is fair and reasonable to alter existing ownership. This question focuses on the circumstances of the relationship, such as its length, the parties’ financial interdependence, and whether assets were acquired through joint effort.

3. Assess each party’s contributions.

If adjustment is justified, the Family Court evaluates both parties’ contributions to the acquisition, conservation, and improvement of property under sections 79(4)(a) to (c) of the Family Law Act 1975 (Cth). Contributions may be financial (income or assets brought in), non-financial (work improving property), or indirect (care of the home and children). The Family Court then determines the contribution-based entitlement of each party as a percentage of the total asset pool.

4. Consider the parties’ future needs.

The Family Court considers factors in sections 79(4)(d) to (g) and 75(2) of the Family Law Act 1975 (Cth) (or section 205ZD(3) of the Family Court Act 1997 for de facto cases).

These include age, health, earning capacity, financial resources, care of children, and responsibilities for dependants. The Family Court may adjust the percentage division to reflect differences in those needs.

5. Determine appropriate final orders.

Finally, the Family Court decides what orders are appropriate to give effect to the parties’ entitlements determined in steps 3 and 4. The outcome must be “just and equitable” in all the circumstances under section 79(1) of the Family Law Act 1975.

Married and de facto couples

The same principles apply to married and de facto couples.

On September 28, 2022, the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 came into effect. It allows de facto couples in Western Australia to split their superannuation as part of a property settlement. This change was significant because, before this date, Western Australia was the only state where de facto couples could split their superannuations.

For de facto partners to qualify for property adjustment orders, the couple must have:

• lived together on a genuine domestic basis for at least two years; or
• raised a child together; or
• made substantial contributions to property or the family.

Liabilities

Our family lawyers ensure that all liabilities and debts are property assessed by the Family Court during a property settlement.

The Family Court reviews all debts as part of the property pool. Some liabilities, such as tax debts or loans, are jointly shared. Others remain personal.

Tax and stamp duty

Transfers made under a Family Court order or a binding financial agreement are usually exempt from stamp duty. This includes transfers of the family home, vehicles, furniture, and superannuation.

Capital gains tax (CGT) may apply if a spouse later sells property received under the settlement, particularly investment or trust assets

Legal costs

The starting point in any Family Court matter is that each party pays their own legal costs.

Costs orders are rare and are usually made only where one party unreasonably refused to settle or acted improperly.

How are assets divided after a divorce in Western Australia?

In Western Australia, the way assets are divided after a divorce depends on whether you and your former partner can reach agreement.

You and your ex-partner can reach a private financial agreement about how your property, money, and superannuation will be divided.

In simple cases, you may not need a court order. However, if you are transferring real estate or splitting superannuation, you will need formal Family Court orders to make the agreement legally binding and enforceable.

When both parties agree, you can apply for Consent Orders by filing Form 11 – Application for Consent Orders with the Family Court of Western Australia.

This process finalises your financial relationship and provides legal protection against future claims.

If you can’t reach agreement, you will need to file a Form 1 – Initiating Application together with supporting documents.

In either case, the court will make an order that is ‘just and equitable’. This is a discretionary assessment which involves the court identifying the asset pool and assessing contributions by each party.

Vogt Legal provides clear, strategic advice to help you negotiate, formalise, and finalise your property settlement.

Who gets to keep the house after divorce in Western Australia?

At Vogt Legal, our family and property settlement lawyers in Perth regularly assist clients resolving disputes about who keeps the house after divorce.

In Western Australia, the issue of property ownership is separate from the divorce itself. A divorce application only ends the marriage, but it does not decide who gets the property.

If the matrimonial home is jointly owned, or owned as tenants in common, and the married owners get divorced, the divorce will not automatically change ownership.

If you and your former partner agree on who will keep the home and how the equity will be divided, you can make the agreement legally binding by filing a Form 11 – Application for Consent Orders with the Family Court of Western Australia. This ensures the transfer of property is recognised by law and exempt from stamp duty.

If you can’t reach agreement, you will need to file a Form 1 – Initiating Application and supporting documents.

The Family Court will then determine how the property pool, including the home, should be divided.

There is no automatic rule for who gets to keep the house. The matrimonial home forms part of the asset pool, and the Family Court can order that:

·         the house be sold and the proceeds divided; or

·         the house be transferred to one party; or

·         one party be granted exclusive occupation of the house.

In either case, the Family Court will make an order that is ‘just and equitable’. This is a discretionary assessment which involves the Family Court identifying the asset pool and assessing contributions by each party.

Vogt Legal helps separating couples resolve disputes about property division and home ownership after divorce.

If you’re unsure who will keep the house, speak to our Perth property settlement lawyers for clear advice tailored to your circumstances.