Do I have to be divorced to split the property?
As soon as you have separated you can arrange to split your property and debts between you and your ex-partner, you do not have to wait until you are divorced. A property settlement after the breakdown of a marriage or de facto relationship can be resolved by consent orders, financial agreement, or court proceedings.
The legal finalisation of your property affairs after you separate is essential to access certain stamp duty exemptions, where relevant, and to protect yourself from potential issues such as future claims on post-separation assets, income and inheritances.
What are the first steps?
Different time limits apply for commencing court proceedings for the division of property, depending on whether you are still married, divorced or have been in a de facto relationship. If you have recently separated you should meet with your lawyer as soon as possible to clarify dates so that if court proceedings do become necessary, relevant timeframes can be diarised.
During our first meeting, we will obtain details from you about your relationship, children, assets, and liabilities. You should bring information and documents such as bank statements, superannuation and loan account details. We appreciate that it may take some time to get this information which can be provided as it becomes available.
It is important to give full disclosure and provide accurate information during property proceedings. We will gather this information and the relevant facts to build your case to achieve a fair settlement.
Do we have to go to court?
No, not at all.
If you and your ex-partner have already reached an agreement on how your property should be divided then we can discuss your rights, how the proposed agreement will affect you, and the most appropriate way for it to be legally documented.
What if we don’t agree?
If there is no agreement on how to divide your property, we will attempt to negotiate a settlement through your ex-partner’s lawyers. With the help of the parties’ lawyers, this will often result in an agreement in principle which can be documented and, if necessary, endorsed by the court.
If no agreement is reached, or the matter is complex, going to court may be necessary. In this event, we will wherever possible, minimise the issues in dispute to avoid excessive fees.
How does the court decide?
There is an established process in cases where there is disagreement over how property should be split. Firstly, the court needs to be satisfied that you have attempted to reach agreement, and to this end you will be ordered to participate in dispute resolution.
If this does not resolve the matter, an application for property orders must be filed with the Family Court or Federal Circuit Court. This application must be made within 12 months of your divorce becoming final.
The matter will be set down for hearing and a legally binding decision will be made by the court.
Firstly, the court will calculate the total assets owned by both parties, including property, shares, cars, jewellery, savings, furniture etc. This includes things you brought into the relationship, those acquired during the relationship and also those purchased after separation.
Next, the court will weigh up the contributions from both parties, including financial, non-financial, inheritances and assets brought into the relationship.
Then the court will look at the future needs of both parties, including factors such as your capacity to earn money and your parental responsibilities.
Finally, the court will make a decision based on what is just and equitable to both parties.
The court plays a discretionary role in determining what is ‘just and equitable’, and no two cases are alike. Within each of the steps outlined above, are numerous other considerations.
Dealing with the complexities of a property settlement is stressful but the consequences of not formalising your financial affairs after you separate can impact the rest of your life. We are experienced negotiators and will make sure that you get the best possible outcome.