Finalising a separation can be challenging, but reaching an agreement on asset division is a significant milestone. However, informal agreements, such as a handshake or written note, are not legally binding under Australian family law.
To make an informal arrangement legally binding and final, you must obtain Consent Orders approved by the Federal Circuit and Family Court of Australia (FCFCOA).
Understanding what is included in a property settlement, how these items are formalised into court orders, and the most effective strategies for court approval can help protect your financial future. Engaging specialised family lawyers can also simplify the process.
What Can Be Included in a Property Settlement?
Many assume a property settlement only involves real estate. In Australian family law, however, “property” includes all assets, debts, and financial resources held by you and your partner, regardless of when they were acquired.
NET PROPERTY POOL
Assets
- Real Estate
- Superannuation
- Bank Accounts & Cash
- Cars, boats and caravans
- Shares & Crypto
- Businesses & Trusts
Liabilities
- Mortgages
- Credit Card Debts
- Personal & Car Loans
- Tax Liabilities
- Commercial Debt
- Novated Leases
1. Real Estate & Property Holdings
- The Family Home: Agreements specify whether the property will be sold and the net proceeds divided or transferred to one partner who refinances the mortgage into their sole name.
- Investment & Commercial Property: Multi-property portfolios are allocated, specifying buyout figures, tax responsibilities and timelines for sale or transfer.
2. Superannuation
Superannuation is considered a separate asset. You and your partner can agree to split your superannuation by transferring funds from one account to the other, or you can each keep your own entitlements.
3. Liquid Assets & Financial Holdings
- Cash & Bank Accounts: Joint savings, transaction accounts, and term deposits are divided or closed.
- Investments: Shares, managed funds, exchange-traded funds (ETFs), and cryptocurrency holdings.
4. Tangible Personal Property
- Vehicles & Machinery: Cars, caravans, boats, and commercial equipment.
- Valuables & Collectables: Fine art, jewellery, antiques, or specialised collections.
5. Corporate & Trust Structures
Entities such as proprietary limited companies, family trusts, or self-managed super funds (SMSFs) must be addressed. This includes resigning as directors, transferring shares, or closing entities.
6. Liabilities & Debts
A property settlement is not just about dividing assets. It also involves deciding who is responsible for debts like mortgages, credit cards, personal loans, tax debts, and buy-now-pay-later amounts. Formal agreements can also protect each partner from future claims.
How Items Are Included in Consent Orders
When formalising a property settlement, the court requires two core legal documents:
- Application for Consent Orders (Form 11): A complete picture of both parties’ current financial situations, including income, assets, liabilities, superannuation, and historical contributions.
- Minute of Order: The legal document containing the precise terms you want the court to make into enforceable orders.
In the Minute of Order, your everyday agreements are turned into clear, legally enforceable instructions.
Example: Translating an agreement into Court Orders
Informal Agreement: “John keeps the house and pays Sarah $150,000 within a month.”
Formal Consent Order: “Within 28 days of the date of these Orders, the Husband shall do all acts and things and sign all documents necessary to pay to the Wife the sum of $150,000. Contemporaneously, the Wife shall execute all documentation necessary to transfer all her right, title, and interest in the real property situated at [Address] to the Husband…”
Every order should include backup plans and time limits. For example, if someone does not refinance a mortgage within 60 days, the order will require the home to be put up for sale to make sure things are resolved.
Best Practice for Property Settlement Consent Orders
To help your Consent Orders get approved quickly by the Family Court, follow these best practices:
- Full and honest disclosure: Both people must share all their assets, income, debts, and financial arrangements. Hiding anything can make your Consent Orders invalid, even years later.
- Ensure the Agreement is “Just and Equitable”: Under Australian family law (Section 79 or Section 90SM of the Family Law Act), a judicial registrar will only approve orders if the division is fair based on past financial/non-financial contributions and future needs.
- Follow Procedural Fairness for Superannuation: Superannuation trustees must be given formal 28-day notice of proposed split orders before filing with the court.
- Leverage Tax & Stamp Duty Exemptions: Properly drafted Consent Orders allow real estate transfers between former spouses to be exempt from state stamp duty and eligible for Capital Gains Tax (CGT) rollover relief.
- Achieve a clean break: Consent Orders can end all joint financial ties, so there are no future claims on assets you get after separation.
How Kate Austin Family Lawyers Assists in the Process
For couples who have already reached an agreement, traditional law firms can sometimes cause delays, extra stress, and unexpected fees. Kate Austin Family Lawyers offers a modern approach made for couples who want a smooth, friendly process.
THE KATE AUSTIN WORKFLOW
- A Free Initial Consultation & Feasibility Check
- Guaranteed Fixed-Fee Upfront Quote
- Comprehensive Form 11 & Minute of Order Drafting
- 24-Hour paperwork Turnaround
- We work with Superannuation Trustee Correspondence
- Complete Electronic Portal Filing & Court Management
- 100% Dedicated Focus on Consent Orders
Kate Austin Family Lawyers focuses only on Consent Orders. Their team of Accredited Family Law Specialists has handled thousands of financial agreements and makes sure every document meets FCFCOA rules.
- Strict Non-Conflict Philosophy
Traditional legal battles can create new conflicts. Kate Austin acts as a neutral documentation specialist. They do not try to change your agreement or set parties against each other. Instead, they turn your agreed terms into a legally binding document.
- Rapid 24-Hour Drafting Turnaround
While traditional firms may take weeks to prepare paperwork, Kate Austin completes Application forms and Minutes of Order within 24 hours after getting your details. Any changes you request are made within one business day.
- Total Fixed-Fee Transparency
We remove fee uncertainty. We only use a fixed-fee model that covers all drafting, superannuation notices, and court filings.
- Complete End-to-End Execution
Kate Austin takes care of the whole process, from drafting your application and working with superannuation funds to e-filing through the Commonwealth Courts Portal and answering any court questions. Once your orders are approved, they give you the sealed court documents you need for banks, conveyancers, and state revenue offices.
Final Thoughts
A property settlement is the most important step in finalising your financial separation. By making sure all assets, debts, and superannuation are included in formal Consent Orders, you set yourself up for long-term financial independence, get tax relief, and protect your wealth after separation.
If you and your former partner have reached an agreement, Kate Austin Family Lawyers offers fast, fixed-fee help to turn your handshake into a binding legal order, all without going to court.