Property settlement lawyer Brisbane
Calm, structured property settlements after separation. Super splitting, trust and SMSF treatment, and full documentation to record the agreement by way of Consent Orders or a Binding Financial Agreement depending on the circumstances.
A property settlement is one of the biggest financial decisions you will ever make, and it usually lands at one of the hardest times to be making it. Kelly Lawyers is a Brisbane Northside firm based in Ascot, with Property Settlement lawyers acting for separating couples across Ascot, Clayfield, Hamilton, Nundah, Nudgee, Banyo, Virginia, Kedron, Stafford, Chermside and beyond. We work the way good Family Lawyers should: clear advice in plain English, realistic ranges of outcome to manage expectations, and proper documentation so the deal you reach is final and binding.
Most property settlements settle out of court, and benefit from a lawyer who understands both the family law side (the four-step section 79 process, time limits, super splitting) and the property side (titles, transfers, stamp duty and CGT relief). We do both, in the same building and across the same team.
Who we help
Property settlement clients are usually in their 30s to 50s, often with children, meaningful assets and complex finances. You may be:
- A separating professional or business owner who needs super, a trust or a company interest valued and split correctly.
- A married couple working out who keeps the family home, who keeps the investment property, and how the equity is divided.
- A de facto partner approaching the two year time limit to apply for a property adjustment.
- An SMSF member or trustee where super forms a large share of the pool.
- A separated couple who have agreed on an outcome and just want it documented properly as consent orders or a binding financial agreement.
- Someone whose former partner is delaying or refusing to negotiate, and who needs a clear path forward.
If your situation is not on that list, give us a call and we will tell you honestly whether family law is the right avenue.
Time limits you cannot miss
Section 44 of the Family Law Act 1975 sets strict time limits for applying for a property settlement.
- Married couples have 12 months from the date the divorce order takes effect.
- De facto couples have 2 years from the date of separation.
The court can grant leave to apply out of time, but only where refusing would cause hardship, so it is always safer to act inside the window. If you are getting close to either deadline, get advice early. Once the window closes, you may be locked out of the family law system and forced to use ordinary civil remedies, which can be slower, more expensive and may not give the same result.
The four-step property settlement process
When the Federal Circuit and Family Court of Australia decides a property matter, it follows a well-established four-step process under section 79 (for married couples) and section 90SM (for de facto couples) of the Family Law Act 1975. Out-of-court settlements are negotiated against the same framework, because that is what a court would apply if the matter went to a hearing.
1. Identify and value the asset pool
Every asset, every liability and every superannuation interest goes into the pool, regardless of whose name it is held in. That includes the family home, investment properties, vehicles, shares, cryptocurrency, savings, redraw and offset balances, family trusts, companies, SMSFs, business goodwill and personal injury settlements. Liabilities (mortgages, credit cards, tax debts, guarantees) are deducted. Disclosure is mandatory and full.
2. Assess each party's contributions
The court looks at financial contributions (salary, business income, inheritances, gifts, pre-relationship assets brought in) and non-financial contributions (homemaking, parenting, renovations, working in a family business without pay). Long-relationship contributions tend to merge over time, while short-relationship contributions are easier to attribute.
3. Consider future needs
The future needs adjustment looks at age, health, earning capacity, who has the primary care of children, and financial resources outside the asset pool such as superannuation pensions, family trusts the parties are discretionary beneficiaries of, and expected inheritances. A common outcome is a 5 to 15 percent adjustment in favour of the lower-earning party, often the primary carer of children, on top of the contributions assessment.
4. Step back and check the outcome is just and equitable
The final step is the court (or the parties, in negotiation) standing back and asking whether the proposed division is just and equitable in all the circumstances. If it is not, the court will adjust further or refuse to make the order at all.
Common risks we help you avoid
- Missing the section 44 time limit (12 months post-divorce, 2 years post-de facto separation).
- Agreeing to a split without a proper valuation of super, an SMSF, a family trust or a business interest.
- Signing an informal settlement that is not enforceable and does not qualify for stamp duty or CGT relief.
- Moving out of the family home or relocating children without advice, weakening your position in negotiations.
- Using text messages, social media or email in ways that later become evidence against you.
- Signing a binding financial agreement without independent legal advice, which makes the agreement vulnerable to being set aside.
- Agreeing to a future-needs adjustment that does not reflect your real earning capacity, age, health or care of the children.
Super, trusts, SMSFs and business interests
Super is treated as property under the Family Law Act 1975 and can be split by a court order or a binding financial agreement. The split is managed by the super fund itself (or, for SMSFs, by the trustee implementing the order). For defined benefit interests and SMSFs there are specific valuation rules and, in the case of SMSFs, real practical questions about whether the fund is wound up, paid out or restructured, and what the limited recourse borrowing arrangement looks like after the split.
Family trusts, unit trusts and companies are not always part of the pool in the simple sense. The court looks at who controls the trust or company, who benefits in practice, and whether the structure was set up to take assets out of reach of a future settlement. We work alongside your accountant on valuations, structuring and tax consequences so the settlement is realistic and enforceable.
Documenting your settlement properly
Once you reach an agreement, you need to document it in a form the court and the ATO will recognise. Informal agreements are not enforceable and they do not provide the stamp duty or CGT rollover relief available under the Family Law Act 1975. There are two formal options.
Consent orders
Consent orders are made by the Federal Circuit and Family Court on the papers, without a court hearing. Both parties sign an Application for Consent Orders and a Minute of Order. A Deputy Registrar reviews the agreement and, if it is just and equitable, seals it as a court order. Consent orders are the most common way to formalise a property settlement in Australia.
Binding financial agreements
A binding financial agreement (BFA) is a private contract under Part VIIIA (married) or Part VIIIAB (de facto) of the Family Law Act 1975. BFAs can be made before, during or after a relationship, and can be used to document a post-separation settlement without filing in court. Each party must receive independent legal advice, and the agreement must meet strict formal requirements. If those requirements are not met, the agreement can be set aside.
Whether consent orders or a BFA is the better choice depends on the complexity of the matter, the assets involved, and the relationship between the parties going forward. We will recommend one over the other after we understand your situation.
Stamp duty and CGT relief on family law transfers
When property is transferred between spouses or de facto partners under a family law order or BFA, the transfer is generally exempt from stamp duty under the Duties Act 2001 (Qld) and qualifies for capital gains tax rollover relief under section 126-5 of the Income Tax Assessment Act 1997 (Cth). That rollover defers the CGT until the receiving spouse later disposes of the asset. The stamp duty exemption can be worth tens of thousands of dollars on a Brisbane home.
These reliefs are only available if the transfer happens under formal consent orders or a properly drafted BFA. Informal post-separation transfers do not qualify.
Our property and conveyancing team handles the title transfer once the family law side is documented, so the whole process stays inside the firm.
Negotiation, mediation and (rarely) court
Most property settlements resolve out of court. The usual sequence is: full financial disclosure between the parties, valuation of any disputed assets (real property, businesses, SMSFs), without-prejudice negotiations between the lawyers, and, if needed, a mediation conference with an independent practitioner. Many of our clients settle the substantive issues at a single mediation.
Court is the last step. Where it is necessary, we run the matter in the Federal Circuit and Family Court of Australia and brief barristers as required. Even matters that go to court usually settle at a mention, conciliation conference or trial directions hearing rather than at a contested final hearing.
Why north Brisbane families choose Kelly Lawyers
- Based in Ascot on the Brisbane northside, with clients across Clayfield, Hamilton, Nundah, Kedron, Stafford and Chermside.
- Calm, measured approach focused on resolution.
- Plain-English advice. No legalese, no letters you cannot understand.
- Cross-team support. Your property settlement lawyer can call on our property and conveyancing team for the title transfer, our wills and estates team if estate planning needs updating, and our commercial team for any business or SMSF restructuring.
- Fixed-fee initial consultations with no obligation to proceed.
What to expect from your first call
We offer fixed-fee initial consultations with no obligation to proceed. In your consultation we will listen to your situation, ask about your finances, your children if relevant, and your goals, and outline your realistic options. Following the consultation we will provide a detailed fee estimate before you decide whether to engage us. Consultations are available at our Ascot office, by phone or by video.
Property settlement frequently asked questions
What is a property settlement under the Family Law Act?
A property settlement is the legal process of dividing assets, liabilities and superannuation between two people after the breakdown of a marriage or de facto relationship. It applies regardless of whose name the assets are held in. The Family Law Act 1975 sets out the framework, and most settlements are documented through consent orders or a binding financial agreement.
How long do I have to apply for a property settlement?
Under section 44 of the Family Law Act 1975, married couples have 12 months from the date their divorce takes effect. De facto couples have 2 years from the date of separation. The court can grant leave to apply out of time in limited circumstances, but it is always safer to act within the window.
How is the asset pool divided in Australia?
There is no fixed 50/50 rule. The Federal Circuit and Family Court applies a four-step process under section 79 (married) or section 90SM (de facto): identify and value the asset pool, assess contributions (financial and non-financial), consider future needs (age, health, earning capacity, care of children), and check the proposed division is just and equitable. Out-of-court settlements use the same framework.
Is superannuation included in a property settlement?
Yes. Super is treated as property under the Family Law Act 1975 and can be split between spouses by a court order or a binding financial agreement. The split is managed by the super fund or, for SMSFs, by the trustee implementing the order. There are specific valuation rules for defined benefit and SMSF interests.
Do I have to go to court to formalise a property settlement?
No. Most property settlements in Australia are resolved out of court through negotiation or mediation, then documented in consent orders or a binding financial agreement. Consent orders are filed with the Federal Circuit and Family Court but you do not normally attend a hearing; a Deputy Registrar reviews the application on the papers.
What is the difference between consent orders and a binding financial agreement?
Consent orders are a court order, made on the papers, that the court has reviewed and is satisfied is just and equitable. A binding financial agreement is a private contract under Part VIIIA or VIIIAB of the Family Law Act 1975, made between the parties without court involvement, that requires each party to receive independent legal advice. Both make the agreement legally binding, but they have different formal requirements and different ways they can be challenged.
Are stamp duty and CGT payable on property transferred in a settlement?
Property transferred between spouses or de facto partners under a formal family law order or binding financial agreement is generally exempt from Queensland stamp duty under the Duties Act 2001 (Qld) and qualifies for capital gains tax rollover relief under section 126-5 of the Income Tax Assessment Act 1997 (Cth). The reliefs are only available if the transfer happens under formal documentation; informal post-separation transfers do not qualify.
How long does a property settlement take?
Simple matters where the parties already agree can be documented as consent orders within four to eight weeks of engagement. Negotiated settlements with full disclosure and valuations usually take three to nine months. Mediations are often booked within two to three months once disclosure is complete. Contested court proceedings can take 18 months or longer.
Speak with a Brisbane property settlement lawyer today
If you are separating, recently separated, or close to the section 44 time limit, book a fixed-fee consultation with a Kelly Lawyers property settlement lawyer. We will listen, explain your options in plain English and help you plan the next step.
Kelly Lawyers | Ascot, Brisbane northside | Servicing Clayfield, Hamilton, Nundah, Kedron, Stafford and Chermside.