What happens to your property after you separate?
Following separation, you will likely need to make arrangements to divide your property and separate your finances. You can begin negotiating a property settlement at any time after you separate from your spouse or de facto partner.
If you and your former spouse or de facto partner are able to reach an agreement about the division of your property, you can formalise your agreement by applying for Consent Orders to be approved by the Court. This will make your agreement legally binding and enforceable and protect each of you from further property claims in the future. There are also certain tax benefits in having Consent Orders made. Consent Orders can deal with the transfer or sale of property, the splitting of superannuation and spousal maintenance. To file Consent Orders, neither you nor your partner need to attend court.
If you and your former spouse or de facto partner are not able to reach an agreement, you may consider making an application to the court for a property settlement.
There are time limits that apply to commencing court proceedings in relation to property matters:
- If you are a married couple, you must commence proceedings within 12 months after your divorce order is granted; and
- If you are a de facto couple, you must commence proceedings within 2 years after the date your relationship ended.
In limited circumstances the court can give permission to start proceedings out of time, however this does not happen automatically.
How does the court divide your property?
When determining a property application, the court generally follows a four-step process:
- Determining your net asset pool, that is all your assets and debts, and their values;
- Assessing the contributions each of you made to the relationship and asset pool, including:
- Direct financial contributions, such as wage and salary earnings;
- Indirect financial contributions, such as gifts and inheritances from family;
- Non-financial contributions, such as renovations to the family home; and
- Contributions to the welfare of the family, including homemaker duties and parenting responsibilities
- Identifying your future needs, taking into account your age, health, ability to earn, and care of your children.
- Considering whether the proposed property settlement is just and equitable.
How we can help you?
We will provide you with personal and practice advice on your rights and obligations and possible outcomes for you. We can conduct negotiations on your behalf with your former spouse or de facto partner or his or her lawyer to reach a mutually acceptable property settlement.
Once we achieve a property settlement, we can formalise the agreement by preparing Consent Orders and filing them at court for you. If appropriate, we can commence court proceedings on your behalf by preparing and filing an application for property settlement and represent you at court.