Property Settlement After Separation or Divorce
Posted: 15th May 2019
Posted in: News
Posted by: Fiona Browne, Associate
People who are separating or divorcing usually need to agree upon the division of assets, debts and superannuation. Time limits apply when it comes to property settlement. It is important to seek legal advice as soon as possible after separation or divorce. To protect your right to seek a property settlement after separation or divorce, seek advice from an accredited family law specialist.
When is a Property Settlement final?
Former spouses or de facto partners can agree upon a property settlement with or without the Court’s involvement.
If you want to make sure though that the agreement is final, it is advisable to formalise it using either Consent Orders filed in the Family Court or a Binding Financial Agreement drafted by a family lawyer to prevent future claims.
If there is no agreement, the only way to finalise property settlement issues is to apply to the Family Court or Federal Circuit Court seeking orders in respect to the property settlement matters.
What is the Time Limit to make a claim for Property Settlement after Separation or Divorce?
There is a relatively short window to claim property settlement entitlements. If parties do not apply within these time limits, special permission from a Court is needed. This is not always granted.
If married, applications for property settlement must be made within 12 months of the divorce becoming final.
In a de facto relationship, applications must be made within 2 years of the breakdown of the relationship.
How does the Court Divide Property?
Although there is no formula used to divide property, the judicial officer decides on what is just and equitable after all the evidence and unique facts of the case are heard.
The Family Law Act 1975 sets out the general principles the Court considers in property settlement matters. Regardless of whether the parties were in a marriage or a de facto relationship, the general principles are the same.
What does the Court consider when making Property Settlement Orders?
- Is it just and equitable to make an Order?
- What are the assets and liabilities of each party to the property settlement application?
- What direct financial contributions have been made by each party to the marriage or de facto relationship? Examples are wages or other income, gifts from parents, inheritances or assets owned prior to the relationship.
- Non-financial contributions to the marriage or de facto relationship such as carrying out renovations to the family home or investing and managing the family‘s finances.
- Contributions to the welfare of the family, for instance carrying out the role of homemaker and caring for the children.
- Contributions both financial and non-financial following separation.
- The future needs of each party to the Property Settlement. Factors such as age, health, financial resources, care of children and ability to earn an income are considered.
When considering property settlement after separation or divorce, the outcome depends on the individual circumstances of the family.
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If you have questions about Property Settlement, seek legal advice immediately.