Family Law & Property Settlements
Family lawyers in Melbourne
Mazzeo Lawyers provides strategic, practical family law advice from its Melbourne office. Our family law work has a particular focus on the financial aspects of separation, including property settlements, high-value and complex asset pools, family trusts, business interests and de facto property matters. We also advise on parenting matters.
There is no fixed formula for dividing property after separation. The outcome turns on the facts of each relationship, and on how carefully the asset pool is identified, valued and explained.
Dividing property & assets
Property settlements after separation
Under the Family Law Act 1975, a property settlement after separation is determined using discretionary criteria. No universal formula applies, and there is no rule that each party is entitled to half of the assets. Instead, the court works through a recognised sequence, and parties negotiating a settlement work through the same steps.
Superannuation is treated as property under the Act and forms part of the pool, even though it cannot usually be accessed until retirement.
Time limits apply. Married couples have 12 months from the date a divorce is granted to apply for a property settlement. Separating de facto couples have 2 years from the date of separation. How these limits apply to your circumstances is a matter for advice, and it is generally better to understand your position well before a limit approaches.
Many settlements are reached through negotiation or mediation without court proceedings. An agreement reached this way should still be formalised, through consent orders or a financial agreement, so that it is binding and can be relied on.
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Identify the asset pool
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Value the assets
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Assess each party's contributions
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Assess each party's future needs
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Consider the overall outcome
Property rights for de facto couples
De facto property settlements
De facto relationships are recognised under Australian family law. If a de facto relationship ends, you may have rights to a property settlement similar to those available to married couples.
The first question is whether your relationship meets the legal definition of a de facto relationship. This depends on the circumstances of the relationship as a whole, including its duration and other factors. In some cases, whether a de facto relationship existed can itself be disputed.
Once a de facto relationship is established, property matters are generally approached in the same way as those for married couples, including considering the asset pool, each party’s contributions and future needs.
There is usually a two-year time limit following separation to apply for a property settlement, so it is important to understand your position early.
Parties can also enter into a financial agreement before, during or after a de facto relationship. For an agreement to be binding, particular requirements must be met and each party must receive independent legal advice.
Complex asset pools
High-value and complex property settlements
Some property settlements involve more than a home and superannuation. Where the asset pool includes a business, company, family trust, inherited wealth, investment structures or assets in more than one jurisdiction, the issues can become significantly more complex. Determining what forms part of the asset pool, how each interest should be valued, and how those interests can practically be divided or retained requires careful consideration.
Mazzeo Lawyers has particular experience in complex property matters involving businesses, trusts and contested estates. A family separation may involve a company, a trust and jointly held property at the same time. Our role is to understand how those interests connect and advise on the whole picture.
Business and company interests
How the business is valued, how income is treated, and whether one party retains the business with an adjustment to the other.
Trust interests
Whether trust assets form part of the pool or are treated as a financial resource, depending on control and the history of the trust.
Inherited wealth and gifts
Valuations and disclosure
Trusts in a property settlement
Family trusts and divorce
A common question is whether assets held in a family trust are protected in a divorce or de facto separation. The short answer is that they are not automatically protected, and they are not automatically included either. How a trust is treated depends on its particular circumstances.
Broadly, a court may treat trust assets as property of the parties where one party controls the trust or can effectively direct how its assets are dealt with. Where that control is absent, the trust may instead be treated as a financial resource, which is relevant to future needs rather than to the division of the pool itself.
These matters turn on documents and history. The trust deed, the roles of trustee and appointor, and the pattern of distributions over time all matter. They can also draw on issues of company, property and trust law, making Mazzeo Lawyers’ broader litigation experience particularly relevant where structures or interests are contested.
Who controls the trust
The identity of the trustee and the appointor, and whether either party can change them.
The history of distributions
To whom income and capital have been paid, and how consistently.
Origin of the assets
Business or property interests
Parenting matters
Children and separation
When parents separate, decisions need to be made about where children live, the time they spend with each parent and how important decisions about their lives will be made.
Australian family law places the best interests of the child at the centre of parenting arrangements. Wherever possible, we help parents reach practical arrangements through discussion and family dispute resolution, without the need for court proceedings. (edited)
Reaching an agreement
When agreement can’t be reached
How we approach parenting matters
FAMILY LAW
Frequently asked questions
Do I need to be divorced before resolving property or parenting matters?
No. Divorce, property settlement and parenting arrangements are separate processes and can be dealt with at different times. For married couples, the 12 month time limit for a property settlement runs from the date the divorce is granted.
Is property always divided equally after separation?
No. There is no rule that each party receives half. The court considers the asset pool, each party’s contributions and future needs, and whether the outcome is just and equitable. The result depends on the facts of the relationship.
What assets and debts must be disclosed?
Both parties must give full and frank disclosure of their financial circumstances. This includes property, bank accounts, superannuation, shares, vehicles, interests in companies or trusts, income, and debts such as loans, credit cards and tax liabilities.
How are businesses, trusts and superannuation treated?
Superannuation is treated as property under the Family Law Act 1975. Businesses and company interests are valued and included in the pool. Trust assets may be treated as property or as a financial resource, depending on control and the trust’s history.
Are informal agreements enforceable?
Generally not. An agreement reached between the parties is not binding until it is formalised, either through consent orders made by the court or through a financial agreement that both parties sign after each has received independent legal advice.
Is mediation required before going to court?
In parenting matters, family dispute resolution is generally required before an application to court, with exceptions including urgency and family violence. In property matters, parties are expected to make a genuine effort to resolve the dispute before proceedings.
What is spousal maintenance?
Spousal maintenance is financial support paid by one person to their former spouse or de facto partner so that they can adequately support themselves. Whether it applies depends on one party’s need and the other party’s capacity to pay.
Contact Mazzeo Lawyers
Discuss your family law matter
If you would like to understand your position on a property settlement, a de facto matter, a family trust or arrangements for children, we would welcome the opportunity to discuss your circumstances. All enquiries are handled in strict confidence, and an initial conversation does not commit you to anything.
Mazzeo Lawyers is located at Level 8, 256 Queen Street, Melbourne VIC 3000.
