Can You Get A Property Settlement Before Divorce?
Separation can be difficult, no matter how prepared you may think you are. Alongside the emotional strain, the question of dividing your property and finances often feels overwhelming. If you’re wondering: can you get a property settlement before divorce? The answer is yes, but it’s a complex process with legal requirements, timelines, and potential pitfalls.
At Michael Lynch Family Lawyers, we understand the challenges separating couples face. Whether you are married or in a de facto relationship, knowing how and when to settle your financial agreement matters can make a huge difference in easing the burden. This guide breaks down what you need to know about getting a financial settlement before divorce, how to protect your interests, and when to seek help. You don’t have to figure it all out alone; we’ll help you move forward with clarity.
Exploring Financial Settlement Before Divorce
A financial settlement before divorce refers to an agreement between separating couples that finalises how their shared assets, debts, and financial resources will be divided before the marriage legally ends.
It covers everything from the family home and bank accounts to superannuation, personal debts, and even more unique assets like companion animals. The aim is to achieve a fair division of property based on each party’s contributions, both direct financial contributions like mortgage payments and indirect financial contributions such as caring for children or maintaining the household.
Unlike divorce, which formally ends the marriage under the Family Law Act, a financial settlement addresses the practical, financial aftermath of separation. Handling these matters early can bring clarity and reduce the emotional stress of prolonged uncertainty.
Can You Do a Financial Settlement Before Divorce?
Legally, you absolutely can agree to a financial settlement before divorce. The family law system treats divorce and property settlement as separate processes. You don’t have to wait for your divorce to be finalised to resolve financial issues.
However, achieving a fair and binding agreement is easier said than done. The family law courts require full transparency, meaning both parties must disclose all relevant financial information, including income, assets, debts, and liabilities. Without complete disclosure of financial details like bank statements and superannuation balances, any agreement risks being invalidated later.
Another critical point is that informal agreements often lack legal enforceability. Unless your settlement is formalised through a property settlement agreement or approved by the court, you could face disputes down the track with no clear way to enforce your rights.
Property Settlement Agreements Before Divorce
A property settlement agreement before divorce is a formal, legally binding document that records how you and your former partner or de facto partner agree to divide property and finances. This document can avoid lengthy and costly court proceedings by settling matters privately, with legal backing.
For the agreement to stand up in court, several conditions must be met:
- Both parties need to obtain independent legal advice to confirm they understand their rights and the consequences of the agreement.
- There must be full and frank disclosure of all assets, debts, and financial resources.
- The terms should be fair and comply with Family Law Act principles.
When properly drafted, this agreement covers everything from the family home and investments to debts and obligations such as spousal maintenance and child support.
Can Property Settlement Happen Before Divorce When Children Are Involved?
If children are involved, property settlement before divorce remains possible, but extra care is needed. The family court always prioritises children’s best interests, especially in decisions that affect their financial support.
Financial arrangements must account for ongoing responsibilities like child support and financial support for the children’s needs. Negotiations around property division often intersect with parenting arrangements and support obligations, making the process more sensitive.
While property settlement does not determine parenting, it can impact what resources are available to support your children. For this reason, many separating couples seek assistance from an experienced family lawyer to balance these priorities fairly and effectively.
Why You Should Seek Legal Advice Early
Handling your property settlement without professional guidance is risky. Family law, including superannuation laws and the calculation of contributions, is complex. Mistakes or omissions can lead to unfair results or cause delays that increase emotional and financial strain.
An experienced family lawyer will help you:
- Gather and disclose all the evidence necessary, including bank statements and financial records
- Understand how the court evaluates direct financial contributions, indirect financial contributions, and non-financial contributions
- Navigate any issues relating to family violence, which may affect negotiations or court outcomes
- Explore options for dispute resolution to avoid costly court battles
- Prepare a property settlement agreement or assist with court applications to ensure your settlement is legally enforceable
Early legal advice can prevent problems later and give you confidence that your rights are protected.
What Happens If You Can’t Agree on Property Settlement Before Divorce?
Disagreement over property settlement is common, especially when emotions run high. If you and your former spouse or de facto partner cannot reach an agreement, the matter will likely end up before a judicial officer in the Federal Circuit and Family Court of Australia.
The court will assess the contributions of both parties, looking at:
- Financial inputs like income, savings, and mortgage payments (direct financial contributions)
- Contributions such as caring for children or maintaining the home (indirect financial contributions)
- Non-monetary inputs like homemaking or other non-financial contributions
After weighing these, the court decides a fair division of family law property and makes financial or property orders that legally bind both parties. This outcome might not satisfy either party, which is why trying to negotiate a settlement beforehand is often preferable.
Important Time Limits for Property Settlement
Timing is critical in family law property matters. The law sets strict time limits for applying for a final property settlement:
- If you’re married, you generally have 12 months from the date your divorce order becomes final to apply for property orders.
- For couples in a de facto relationship, you usually have two years from the date of separation to seek a court-ordered settlement.
Failing to act within these periods can mean losing your right to pursue property division through the courts.
What’s Covered in a Property Settlement
A property settlement isn’t just about dividing physical assets. It includes all assets and liabilities accumulated during your relationship, such as:
- The family home and any other real estate
- Superannuation and retirement accounts
- Bank accounts, shares, and investments
- Personal debts like loans or credit card balances
- Even companion animals can be considered in the property division
Notably, property settlement does not cover child support or arrangements related to children’s living and care, which are handled separately.
How Michael Lynch Family Lawyers Can Help
At Michael Lynch Family Lawyers, we know the process of negotiating and finalising a family law property settlement can be daunting. Whether you want to explore if you can agree a financial settlement before divorce, or need help preparing a property settlement agreement before divorce, our expert team is here to support you.
We can assist with a range of family law services, including:
- Clarifying your rights and entitlements under the Family Law Act
- Collecting and organising financial details and evidence
- Advising on the impact of family violence or other sensitive issues
- Representing you in dispute resolution or court proceedings
- Ensuring any agreements are fair and legally enforceable
Separation is difficult, but you don’t have to face the legal complexities alone. Contact Michael Lynch Family Lawyers today at (07) 3221 4300 or [email protected] for personalised advice and compassionate support tailored to your situation.
