No one enters a relationship expecting it to end, but when a separation does happen, property is almost always at the centre of the conversation. In the latest episode of Property, Straight Up, host Mel Dennis sits down with Claire Walczak, an accredited family law specialist and partner at Lander & Rogers, to unpack what really happens to real estate when a relationship breaks down, and how the right advice, at the right time, can save people enormous stress, time and money.

Claire works exclusively in family law, advising clients on property settlements, parenting arrangements, spousal maintenance and binding financial agreements. She also helps clients put protections in place before a relationship even begins. You can find out more about her work with the family and relationship law team at Lander & Rogers here. Her insight offers a practical roadmap for anyone facing separation, and a timely reminder for couples who want to protect what they have built together.

How Real Property Is Actually Dealt With

Real property, meaning the family home, investment properties or business premises, is one of the most common and most contested assets in a family law matter. According to Claire, how it gets dealt with usually comes down to whether the issue is being resolved on an interim or a final basis.

If both parties agree the property should be sold, they still need to agree on the process: which agent to use, whether the sale is by auction or private treaty, the reserve price, the conveyancer, and how the proceeds will be distributed. Where there is no agreement on distribution, solicitors will often hold the proceeds in trust until the matter is resolved. If the property sits in one party’s name only, a caveat may need to be lodged to protect the other party’s interest and avoid what Claire describes as a fire sale.

Where one party wants to keep the property as part of their settlement, the parties need to agree on its value, often through a market appraisal or a formal valuation if they cannot agree. Courts will generally try to allow the party who has remained in the home since separation, particularly where children are involved, to retain it for the sake of stability.

One of the most overlooked issues is who has use and occupation of the family home immediately after separation. Claire is emphatic on this point: anyone considering leaving the family home should get legal advice first, because giving up occupation without advice can affect their position later on. Where family violence is involved, an intervention order can also restrict a person from coming within a set distance of the home.

The Misconceptions That Cost People Money

Claire sees the same misunderstandings come up again and again, and they tend to be expensive ones.

The first is the belief that whoever’s name is on the title owns the property outright. In family law, that is not how it works. Every asset, whether held solely, jointly, in a trust or through a business, goes onto the same balance sheet.

The second is the assumption that separating couples are automatically entitled to an equal, fifty fifty split. There is no such automatic entitlement. Each matter is assessed on its own facts through the proper legal process.

The third, and perhaps the costliest, is relying on an informal property settlement. These arrangements are not legally binding. Claire has seen clients served with a court application for property settlement after believing their assets were already divided, forcing them into a second, formal settlement and a second round of legal costs.

Court Is Not the Only Path

Many people assume separation automatically means heading to court, but Claire says that is far from the norm. Most of her clients receive initial advice, negotiate directly with their former partner, then return simply to formalise the outcome through consent orders or a binding financial agreement.

Where negotiation needs support, private mediation is increasingly the next step, and courts now require parties to attempt mediation before filing in most property and parenting matters. Litigation tends to be reserved for cases involving non disclosure of finances or where negotiations have genuinely run their course. Even then, most matters settle before reaching a final hearing.

Claire’s advice for avoiding unnecessary conflict comes down to three things: engage in mediation as early as possible, insist on full and frank financial disclosure from the outset, and choose a lawyer who is experienced in mediation rather than one who fights every point for the sake of it. As she puts it, settling early means both sides will need to compromise. No one wins every point.

Reducing Conflict With a Vendor Advocate

Mel and Claire also discussed the practical side of selling property during separation, something Mel and the team at Domain & Co manage regularly for separating couples. Claire is a strong advocate for appointing an independent vendor advocate to manage the sale process, particularly in high conflict matters. Having a neutral third party reduces the number of letters exchanged between solicitors, lowers stress for both parties, and keeps control of the sale with the people involved rather than the court.

Claire recalled one matter where the parties exchanged extensive correspondence over who would remove a fish tank, complete with live fish, a reminder of how quickly legal costs can escalate over issues a vendor advocate could resolve in a single conversation.

Binding Financial Agreements Explained

Binding financial agreements, often called BFAs, prenuptial agreements or cohabitation agreements, are legally binding contracts that set out how assets will be divided if a relationship ends. Importantly, a BFA only takes effect if a separation actually occurs. Until then, as Claire puts it, it simply sits in the top drawer.

A BFA tends to make sense where parties want certainty about what happens to their assets without involving the Federal Circuit and Family Court of Australia, where one or both parties bring significant assets such as an inheritance, gift or loan into the relationship, or where families are seeking to protect intergenerational wealth across future generations.

Starting the Conversation Early

Claire acknowledges that talking about finances at the start of a relationship is never going to feel romantic, but she is direct about the alternative: having that conversation after a relationship has broken down is far harder. She is encouraged by a shift in attitudes, particularly more women initiating conversations about BFAs and protecting their own wealth, where historically that conversation was more often started by men.

Her advice for anyone considering separation or entering a new relationship is the same: seek advice early. Conversations with a family lawyer remain confidential regardless of when you have them, and understanding your rights and entitlements early puts you in a stronger position for whatever negotiation follows.

Key Takeaways

For separating couples

• Get legal advice before leaving the family home, not after.
• Property is assessed on the full balance sheet, regardless of whose name is on the title.
• There is no automatic right to an equal split.
• Informal agreements are not enforceable. Have settlements formalised through consent orders or a binding financial agreement.
• Mediation, full financial disclosure and the right lawyer can keep most matters out of court.
• An independent vendor advocate can reduce conflict and legal costs during a sale.

For couples planning ahead

• Consider a binding financial agreement if you or your partner are bringing significant assets, an inheritance or family wealth into the relationship.
• Talk about money early. It is an easier conversation now than after a separation.
• A BFA only activates upon separation. Until then, it provides certainty rather than an expectation of failure.

This article is based on insights shared by Claire Walczak, partner at Lander & Rogers, in conversation with Mel Dennis on Property, Straight Up. Listen to the full episode, “The Property Mistakes That Cost You When a Relationship Ends,” here.

This article is general in nature and does not constitute legal advice. Anyone facing separation or considering a binding financial agreement should seek advice from a qualified family lawyer.