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.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

At Vogt legal we are able to advise you on all matters relating to the Competition and Consumer Act 2010 (Cth), including misleading and deceptive conduct and claims for breaches of consumer guarantees in relation to goods and services.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Business and company commercial disputes often occur over the terms of contracts and debt /capital disputes between Partners, Directors and Shareholders. However, you could also be having internal business disputes over how your business is being run, or disputes over financial returns and capital contributions.

Vogt Legal advises our clients on the best methods of commercial dispute resolution, conciliation, mediation, arbitration or court proceedings.

Key areas we can provide you with advice on:

• Shareholders and directors.
• Disputes between companies
• Disputes between directors and shareholders
• Breach of director’s duties
• Withholding of dividends
• Fraud
• Breaches of shareholder agreements
• Seeking remedies available against directors breaching their duties to the company and shareholders pursuant to the requirements of the

Corporations Act 2001 (Cth)

• Seeking urgent interlocutory and final injunctions to prevent damage to the company
• The appointment of an administrator or receiver to the company

Partnerships.

• Partnership issues and disputes
• Alternative methods of dispute resolution
• Dissolution of partnerships
• Division of assets

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Disputes between directors and shareholders can place significant pressure on a business, affecting its operations, decision-making and long-term stability. Disagreements may arise over the management or direction of a company, financial decisions, access to information, alleged breaches of directors' duties, shareholder rights, ownership interests or the conduct of other directors and shareholders.

At Vogt Legal, we assist directors, shareholders and business owners in resolving complex corporate disputes and protecting their legal and commercial interests. Whether the matter involves shareholder oppression, breaches of duty, deadlocked decision-making, disputed company transactions or disagreements over control of the business, we provide practical advice focused on achieving an effective resolution while minimising disruption, cost and risk wherever possible.

At Vogt Legal, we also often act for directors in relation to disputes relating to directors duties, disclosure of confidential information, restraints of trade clauses in contracts and matters relating to the requirements of the Corporations Act 2001.

We also act for shareholders of public listed companies and have experience in issuing notices for the requisition of company meetings, shareholder oppression actions, disputes relating to the breach of director’s duties, statutory derivative actions, disputes relating to breaches of shareholders’ agreement and challenging rights issues.

Disputes between directors and shareholders may arise because of:

• Directors breaching their duties as a director;
• Disagreements about the company’s strategic direction and management;
• Withholding dividends or payment of dividends;
• Disagreements about the amounts of salaries and profits paid as dividends;
• Conflicts of interest, including directors having personal interests in other companies or businesses;
• Fraud or illegal conduct by directors, including suspicions and allegations of misappropriation of company funds;
• A lack of transparency or denial of requests to provide financial and accounting information;
• Certain directors or shareholders being excluded from meetings or management;
• Breaches of the Company Constitution, Replaceable Rules or Shareholder’s Agreements; and
• Insolvency and liquidation.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

In Western Australia, the operation of a partnership is governed by common law principles and the Partnerships Act 1895 (WA) (“Act”).

Section 7(1) of the Act defines a partnership as “the relation which subsists between persons carrying on a business in common with a view of profit”. Section 7(2) of the Act also states that “In deciding whether a partnership does or does not exist in any particular case, the court shall have regard to the true contract and intention of the partners as appearing from the whole facts of the case”.

The key characteristics of partnerships include the following:

• the partnership does not have a separate legal identity like a corporation and is represented by its individual partners;
• the relationship between the partners is governed by a partnership agreement between the partners, such as their voting rights and rights to a distribution of profits;
• the partners have unlimited joint and several liability for all of the liabilities of the partnership but may seek contribution from each other; and
• subject to applicable law in certain circumstances, the partnership may distribute profits as it sees fit but each partner is taxed at his or her personal taxation rates.

At Vogt Legal we are experienced in advising clients with respect to all aspects of partnerships and prepare partnership agreements that clearly define how the partnership will operate to avoid disagreement and to reduce the risk of disputes arising between the partners.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Vogt Legal can help you resolve any disputes regarding repayment of loan sums advanced, or breaches of other terms of loan agreements, whether you are a lender or a borrower.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

At Vogt Legal we advise our clients on all issues relating to misleading and deceptive conduct.

 There are a number of different types of conduct that may be construed to be misleading or deceptive conduct.

Misleading Statements

A person who makes a misleading statement can be found to be in breach of Section 18 of Australian Consumer Law. 

Statements About the Future

If a statement projects or forecasts the future it can be deemed misleading or deceptive. Statements about the future are not misleading simply because they turn out to be false – the ruling factor will be whether or not the party making the statement had reasonable grounds for making a statement predicting the future and whether the party making the statement knew the statement was untrue or correct.

Silence as Misleading or Deceptive Conduct

Misleading or deceptive conduct can also consist of omissions or silence in relation to relevant information. For example:

1. one person fails to alert another to facts known only to them, and the facts are relevant to a decision;
2. important details a person should know are not conveyed to them;
3. a change in circumstance meant information already provided was incorrect.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

At Vogt Legal, our experienced team manage disputes between business entities or individuals arising from commercial transactions, such as breach of contract, shareholder disagreements, partnership disputes, or intellectual property issues.

We represent our clients in court and advocate for their interests, through negotiations and if necessary, litigation.

If you or your business are in dispute, or can see a dispute approaching, contact Vogt Legal today.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone conversation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Vogt Legal’s dedicated employment law team are able to draft, review and advise you on your employment contracts as well as advising you on and drafting Individual Flexibility Agreements.

If you require any assistance in relation to employment contracts, contact Vogt Legal today.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.