Property settlement lawyer Melbourne — section 79 four-step process, senior-lawyer service since 2012

Working out who gets what after a separation can feel brutal — it's your home, your savings, the life you built, all of it suddenly up in the air. It's normal to feel anxious about it, and you don't have to face the numbers alone. Property settlement is rarely a strict 50/50, and it very rarely needs a courtroom — most are sorted calmly and fairly by agreement. Here's how it works, and how we help you reach an outcome you can actually move forward on.

At a glance — our property settlement service

---

What property settlement service does Fogarty Oliver Rothschild provide?

Fogarty Oliver Rothschild handles family law property settlement matters in Melbourne under section 79 of the Family Law Act 1975 (Cth) (for married couples) or section 90SM (for de facto couples). The court applies a four-step process: identify and value the property pool, assess contributions, assess future needs under section 75(2), and determine a just and equitable outcome. Property settlement is typically the largest financial process in separation — often involving real estate, superannuation, business interests, trusts, and substantial liabilities — and senior-lawyer involvement substantially affects the outcome. Principal lawyer Elisa Rothschild BA/LLB has been handling Melbourne property settlement matters since 2012 and personally manages each matter. Fixed-fee packages apply for matters that can be scoped upfront ($2,750 for consent orders, $4,400-$9,900 for Binding Financial Agreements, $6,600-$13,200 for negotiation); hourly billing applies for litigated matters with regular cost estimates and active scope management. Property transfers pursuant to consent orders or BFA are generally exempt from stamp duty under section 44 of the Duties Act 2000 (Vic). This page sets out the full property settlement service and how to start.

Book a free 30-minute consultation → | Call 03 4328 5084

---

What's the four-step process under section 79?

The court applies four sequential steps to every property settlement.

Step 1 — Identify and value the property pool

"Property" under section 79 includes substantially everything of financial value owned by either party:

• Real estate (family home, investment properties, holiday properties)
• Superannuation (treated as property under Part VIIIB of the Family Law Act)
• Cash and bank accounts
• Investments (shares, managed funds, bonds, cryptocurrency)
• Vehicles
• Personal property of value (jewellery, art, collectibles)
• Business interests (sole trader, partnership, company, trust-held)
• Trust assets (where the party has a beneficial interest)
• Debts and liabilities (netted off)
• Financial resources (entitlements that may not be strictly "property")

Excluded from the pool in most cases:

• Future earnings (treated under future needs assessment, step 3)
• Some personal injury damages (depending on circumstances)
• Some inheritance entitlements (depending on timing and treatment)

Valuation:

Some assets value themselves (cash, listed shares). Others require valuation — real estate, businesses, art, defined benefit superannuation. Single joint valuations (one valuer agreed by both parties) reduce cost compared to each party engaging separate valuers.

Step 2 — Assess contributions

Section 79(4) requires the court to consider contributions of three types:

Direct financial contributions:

• Money earned and contributed during the relationship
• Pre-relationship assets brought in
• Post-separation contributions before settlement

Indirect financial contributions:

• Gifts and inheritances received
• Family loans
• Contributions from parents (e.g. parental contribution to first-home deposit)

Non-financial contributions:

• Homemaking and parenting
• Supporting the other party's career
• Property maintenance and improvement
• Care of children (including post-separation)

The court doesn't treat these mechanically. A long marriage with both parties contributing in different ways typically reaches a substantially equal outcome on contributions; a short relationship where one party brought substantial pre-existing assets typically reaches a skewed outcome.

Step 3 — Assess future needs (section 75(2))

Section 75(2) lists factors affecting the parties' future needs:

• Age and state of health
• Income, property, and financial resources
• Capacity to earn (including future earning capacity)
• Whether either party has the care of children
• A reasonable standard of living
• Duration of the relationship
• Contributions to the other party's earning capacity
• Need for retraining or education
• Whether either party has remarried or entered new relationship

The future needs assessment can adjust the contributions-based starting point — typically by 5-20% in favour of the lower-earning or primary-caregiver parent.

Step 4 — Just and equitable assessment

The court looks at the overall outcome. Are the proposed orders just and equitable in the circumstances? This is a holistic assessment, not a mechanical calculation.

Typical outcome ranges:

• Short-medium relationships, both working: 50/50 ± 10%
• Long marriages with substantial care contributions: 40/60 to 60/40 typically
• Long marriages with one party as primary carer post-separation: skewed toward primary carer (commonly 60/40 to 70/30)
• Substantial pre-relationship assets retained by contributing party: skewed toward that party

These are illustrative ranges, not rules. Each matter depends on its specific facts.

---

How is property settlement resolved?

Three main pathways:

1. Consent orders (agreed)

Where parties have reached agreement on property division, consent orders convert the agreement into court-approved orders.

• Fixed fee: $2,750 (property only) or $3,850 (combined with parenting)
• Court filing fee: $205
• Process: drafting → both parties sign → filing → Registrar review → orders made
• Timeline: 8-16 weeks from instructions to orders made
• Stamp duty exemption under section 44 Duties Act 2000 (Vic) applies

See consent orders cost and process →

2. Binding Financial Agreement (BFA)

A private agreement (not court-approved) under sections 90B-90KA (married) or 90UA-90UN (de facto).

• Fixed fee: $4,400 (straightforward) to $9,900 (complex) per party
• Independent legal advice for both parties (statutory requirement)
• Process: drafting → both parties' lawyers advise → execution
• Timeline: 2-6 months typically
• Stamp duty exemption under section 44 Duties Act 2000 (Vic) generally applies
• Combined cost both parties: typically $8,800-$20,000+

See Binding Financial Agreement cost guide →

3. Negotiated settlement (parties haven't yet agreed)

Where parties haven't reached agreement, negotiation precedes consent orders or BFA.

• Fixed-fee negotiation package: $6,600 (standard) to $13,200 (substantial pool)
• Includes disclosure exchange, settlement proposals, negotiation correspondence, final agreement documentation
• Conversion to consent orders typically included up to filing

4. Litigated property settlement (court proceedings)

Where negotiation fails or isn't appropriate, court proceedings begin with an initiating application.

• Hourly billing applies (fixed-fee can't realistically scope litigation)
• Court filing fees: $435 (final orders only), $585 (interim + final), $710 (combined with parenting)
• Typical lawyer cost: $25,000-$80,000 for matters resolving before final hearing; $80,000-$200,000+ for matters proceeding to final hearing with substantial witness evidence

See property settlement lawyer fees guide →

---

What if business or trust interests are involved?

Business and trust matters add substantial complexity to property settlement.

Business interests:

• Business valuation required (typically by a specialist business valuer)
• Different valuation methodologies depending on business type (going-concern, asset-based, income-capitalisation)
• Considerations of partner/co-owner interests
• Income generated by the business (relevant to future needs)
• Whether the business should be sold, retained by one party, or split

Discretionary trusts:

• Beneficial interest analysis — whether the party is a beneficiary, controller, or both
• Asset attribution — whether trust assets are added to the property pool or treated as a financial resource
• The Kennon v Spry High Court precedent on trust treatment
• Whether the trust can be unwound or restructured

Self-Managed Super Funds (SMSF):

• Specific superannuation splitting rules under Part VIIIB
• Trustee compliance requirements
• Coordination with SMSF accountant

Cost implications:

Business or trust matters typically cost 2-5x equivalent direct-ownership matters. BFAs at the $6,600-$9,900 complex tier; litigated business matters $80,000-$200,000+.

We coordinate with forensic accountants, business valuers, and (where required) SMSF accountants as part of the service.

---

What about superannuation?

Superannuation is treated as property under Part VIIIB of the Family Law Act 1975 and is included in the property pool.

Key points:

• Superannuation can be split between separating parties via consent orders, BFA, or court order
• Splitting requires specific procedures — informal agreements don't bind the superannuation fund
• Splitting can be by percentage, fixed amount, or specific arrangement
• Defined benefit superannuation is more complex than accumulation funds
• SMSFs have specific compliance and trustee considerations

The economics:

For many couples, superannuation is a substantial portion of the property pool. Ignoring superannuation or "trading" it informally may not produce a just and equitable outcome — the funds may have very different values.

---

What about the 12-month deadline?

Property settlement applications have strict time limits:

• Married couples: 12 months from the divorce order under section 44(3)
• De facto couples: 24 months from separation under section 44(5)

After the deadline: Leave of the court is required. Leave isn't guaranteed — the court considers whether the delay was reasonable, whether the parties would suffer hardship, and other factors.

Practical implication: Don't delay property settlement. If the deadline is approaching and resolution isn't imminent, filing a protective application can preserve your rights pending resolution.

---

How do property settlement and conveyancing connect?

Property settlement orders often require property transfers. Fogarty Oliver Rothschild handles the conveyancing in-house alongside the family law work, providing:

• Section 44 Duties Act 2000 (Vic) stamp duty exemption coordination
• Title transfers between separating parties
• PEXA electronic settlement
• Coordination with mortgagee banks where loans are being assumed by one party
• Caveats and other title protective measures where required

This integration avoids duplicated effort and gaps between the family law side and property transfer side.

See our conveyancing service →

---

What about Jewish family law property matters?

A substantial part of Fogarty Oliver Rothschild's property settlement practice involves Jewish family law dimensions:

• Property settlement coordinated with get (religious divorce) coordination
• Beth Din arbitration of property matters where parties choose religious resolution
• Halachic prenup + civil BFA combinations to address both religious and Australian law dimensions
• Property settlement involving Israel-related assets and cross-border considerations

Elisa Rothschild has advanced Jewish studies background from Beth Chana Seminary, Israel, and maintains established networks with Israel-based lawyers and real estate professionals for cross-border matters.

See Jewish family law specialty page → · See Family Lawyer Caulfield North →

---

What does property settlement cost at Fogarty Oliver Rothschild?

See full pricing → Fixed-fee packages

Disbursements at cost:

• Court filing fees ($205 consent orders, $435-$710 initiating applications)
• Property valuations ($500-$1,500 per property)
• Business valuations ($5,000-$30,000+ for substantial businesses)
• Forensic accountant reports ($5,000-$50,000+ for complex matters)
• Search fees, subpoena fees, witness costs as required

---

What's the process from start to finish?

Step 1 — Free 30-minute consultation

Discuss your situation, identify the property pool roughly, discuss likely outcomes, agree fee structure.

Step 2 — Engagement and disclosure collection

Disclosure documents collated (tax returns, bank statements, superannuation, property valuations, business financials where applicable). Both parties have a legal disclosure obligation.

Step 3 — Negotiation or BFA drafting

Negotiation correspondence with the other party (or their lawyer); or BFA drafting where that pathway is chosen.

Step 4 — Agreement reached

Settlement reached. Documentation prepared.

Step 5 — Filing or execution

Consent orders filed through Commonwealth Courts Portal; or BFA executed by both parties after independent legal advice.

Step 6 — Court approval (consent orders) or finality (BFA)

Court approval of consent orders (4-12 weeks); or BFA effective on signing.

Step 7 — Implementation

Property transfers (handled by our conveyancing team), superannuation splits processed, accounts closed and re-opened, any other implementing steps.

Step 8 — Post-resolution follow-up

Minor follow-up issues typically included in the fixed fee.

---

Frequently asked questions

What is property settlement under the Family Law Act?

The legal process of dividing property between separating partners under section 79 of the Family Law Act 1975 (married couples) or section 90SM (de facto couples). Includes real estate, superannuation, business interests, trusts, savings, debts, and other property.

Does the court divide 50/50?

Not necessarily. Section 79 doesn't specify a starting point of equality. The court applies the four-step process and reaches a just and equitable outcome on the specific facts. Typical outcomes range from 40/60 to 60/40 in most matters.

What's the four-step process?

Under section 79: (1) identify and value the property pool; (2) assess contributions (direct financial, indirect financial, non-financial); (3) assess future needs under section 75(2); (4) determine just and equitable outcome.

What about superannuation?

Superannuation is treated as property under Part VIIIB of the Family Law Act 1975. Splitting requires consent orders, BFA, or court order — informal agreements don't bind the superannuation fund.

What's the time limit for property settlement?

Married couples: 12 months from the divorce order under section 44(3). De facto couples: 24 months from separation under section 44(5). After these periods, leave of the court is required.

Are stamp duty exemptions automatic with consent orders?

For property transfers pursuant to consent orders or BFA, stamp duty is generally exempt under section 44 of the Duties Act 2000 (Vic) for Victorian properties. We coordinate the exemption as part of the conveyancing service.

What if my partner isn't disclosing assets?

Active disclosure is a legal obligation. Where non-disclosure is suspected, formal disclosure applications and forensic accounting can identify hidden assets. Discovery of hidden assets can affect both property division and cost orders.

Do you handle Jewish family law property matters?

Yes — substantially. Property settlement integrated with get coordination, Beth Din arbitration where chosen, Halachic prenup + civil BFA combinations, and Israel-related cross-border matters.

How long does property settlement take?

Agreed matters (consent orders): 2-4 months from instructions to orders made. Binding Financial Agreements: 2-6 months. Negotiated property settlement: 4-8 months. Litigated matters: 12-30 months typically.

How much does it cost?

For agreed matters, consent orders are $2,750 fixed fee plus the $205 court filing fee. For negotiated matters, $6,600-$13,200 fixed fee. For litigated matters, $25,000-$200,000+ depending on complexity.

---

Ready to discuss your property settlement?

The first 30 minutes are free.

📞 Call 03 4328 5084

📧 info@fogartyoliverandrothschild.com.au

📍 84 Chapel Street, St Kilda VIC 3182

🌐 Book a free 30-minute consultation online →

Hours: Monday to Friday, 9am–5pm.

---