Family Law Blog and News

Property Settlement – Myths busted

Property Settlement – Myths busted

There’s so much information available about property settlement shared by friends, family and on Facebook, that it can be hard to know what is right and what is not.

We decided it was time to bust some common myths and set the record straight…

Only property owned at separation is divided in a divorce


This is one of the most common family law property settlement myths.

We've written previously about the risks of delaying property settlement.

Under the Family Law Act, property is divided based on the pool of property that exists at the date it is being divided, not at the date of separation.

So, this means that if you take 3 years to do a property settlement, your property will be what you have 3 years after separation.

property settlement

I'm entitled to half of my spouse's assets and superannuation in a property settlement


This is another family law property settlement myth that needs busting and was the subject of this
family law blog post.

There is no starting point or automatic end point of 50/50.

A family law property settlement is worked out using a 4 step process set out in the Family Law Act.

Sometimes this results in a 50/50 outcome but frequently, it does not!

Everything is valued at the date we separate, regardless of when we divorce


Yet another myth.

There is no magic in the date of separation, other than to draw a line to say what something was worth then, if you do your property settlement a long way down the track.

This post on family law property valuations explains how property is valued for family law purposes.

property settlement

If we haven't done a property settlement and my spouse dies I will get the house

Actually, this one is partially true...

Under the Family Law Act you can only bring a family law property settlement claim when your spouse is still alive. If you delay your property settlement, then this can have serious consequences, with you missing out completely on receiving a property settlement.

However, if you own property in Queensland under a certain form of title,
then you might at least receive that property on the death of your spouse.

In Queensland, where real property is owned jointly with another person, you own the property either as joint tenants or as tenants-in-common. Most people assume that if they own it 'equally' they are joint tenants. However, that may not be how your lawyer set it up when you bought the property.

If you own your property as joint tenants, then when one of you dies,
the property automatically passes to the surviving owner.

If the property is held as tenants in common,
then the deceased's share of the property passes according to their will.

If you aren't sure how your property is owned,
talk with one of our Brisbane family lawyers about doing a search on the title.

Even if you are joint tenants, your spouse can change that to tenants-in-common at any time,
so it pays to get some family law legal advice and start the property settlement process.

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