Have you separated from your partner?
Separating from a spouse or partner can be traumatic with many practical and financial considerations. A break-up places stress on the emotional wellbeing of all parties and their decision-making capacity – getting advice early is important to ensure the best possible outcome is reached in your circumstances.
Getting a divorce
Australia has a no-fault divorce system – married couples can apply for a divorce if their marriage has broken down irretrievably. To apply for a divorce, usually the parties must have been separated for a period of at least 12 months, however in some circumstances, this time can include a period of separation under the one roof.
If you have children under the age of 18 years, the court granting the divorce must be satisfied that proper arrangements have been put in place for the children.
What is a family law property settlement?
A property settlement concerns the division of assets, liabilities, and financial resources between a separated couple to legally finalise their financial affairs. The conclusion of a legal property settlement enables the parties to move on with their respective financial lives and can facilitate certain duty concessions when transferring assets like real estate.
We are experienced in dealing with financiers and their requirements when refinancing the matrimonial home into your name.
When can I obtain a property settlement?
A person may seek a property settlement once he or she separates from a former spouse or de facto partner. There is no requirement to be divorced before settling your financial affairs however the following time limitations are important:
- for de facto partners, any court proceedings for a property settlement must be commenced within two years of separating;
- the granting of a divorce triggers a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance.
Even ex-partners on good terms should ensure that any agreement reached concerning the division of their property is legally documented and each receives independent legal and financial advice before finalising their affairs.
What steps are involved in dividing property?
The division of assets after separating can be achieved through a financial agreement, consent orders or court proceedings.
Most family law property settlements are finalised without going to court which should only be considered as a last resort.
The Family Law Act 1975 (Cth) encourages separating couples to settle property issues amicably and full disclosure is essential.
When negotiating how property should be divided after a break-up the same steps that a court would take are generally applied. These are:
- identifying the parties’ assets, liabilities and financial resources;
- assessing the parties’ respective financial and non-financial contributions;
- evaluating the parties’ future needs including their relative earning capacities, state of health, education and responsibilities as primary carer of any children;
- making just and equitable orders in consideration of all circumstances.
We do not currently accept instructions in Children’s matters