In this article, we look at how long divorce takes in Australia.
Divorce can be a complicated process to navigate as it requires extensive legal procedures and paperwork. While the standard divorce process in Australia usually takes a few months to be finalised after submitting an application, the total duration of divorce proceedings and everything that they entail can vary significantly as many factors come into play.
Let’s take a closer look at the factors that influence how long a divorce takes.
Factors That Influence the Duration of a Divorce
The legal framework in Australia provides certain guidelines and timelines for divorce, but individual cases can vary widely in their duration. The average divorce takes around 3-4 years from separation to a finalised settlement.
It’s also important to note the distinction above between the divorce itself, which is simply the legal severance of the marriage, and everything else that it entails such as devising property settlement, calculating child support, determining spousal maintenance etc. While the actual time between filing for divorce and having a divorce order issued by the court usually only takes several months, the rest of the proceedings may take much longer.
Divorce is usually granted in two steps:
Step 1: Court order
If all the requirements are met and the court is convinced that adequate provisions have been set for any children involved in the relationship, a court order will be issued. However, it’s crucial to recognise that a period of time must usually pass before the order takes effect.
Step 2: Finalising the Divorce
Following the issuing of the initial court order, there is a standard waiting period. The divorce order generally becomes absolute 1 month and 1 day after the order is made, marking this date as the official divorce date. However, there are circumstances where the court might have compelling reasons to delay the granting of the divorce beyond this timeframe.
Common Delays in the Divorce Process
- Disputes Over Child Custody or Property: If the parties cannot agree on these matters, the court may need to step in, which can extend the process by several months or even years.
- Non-Response to Divorce Papers: If one party fails to respond to the divorce application, the process can also be delayed. The court may require additional hearings or documentation before proceeding.
- Unable to Serve Papers: If you struggle to serve your spouse with sealed copies of the divorce application, this will also delay the process. This is only relevant if you make a sole application for divorce.
- Missing or Incorrect Documentation: Filing incomplete or incorrect paperwork can lead to delays as the court will not process the application until all required documents are submitted.
- If the other party objects: This can significantly delay the process by requiring additional hearings or evidence to address the disputes.
Now let’s look at the full timeline and process of separation, divorce proceedings, and all other relevant factors to get a more comprehensive picture of the duration between the initial separation, the finalised divorce, and property settlement.
The Process and Timeline of Separation and Divorce Proceedings in Australia
While each situation may have unique circumstances, there are general procedures in place that influence how long divorce takes in Australia to ensure fairness and due diligence.
- Initial application: Once you’ve decided to legally end your marriage, the first step is to file an application for divorce. This can be a sole application (filed by one party) or a joint application (filed together by both parties). A sole application will need to be served on the other party in a specific way and a further document will need to be filed.
- Mandatory waiting period: In Australia, there’s a mandatory 12-month separation period before the court considers your divorce application. This means that from the time you and your partner decide to separate, you must wait at least 12 months before you can file for divorce.
- Response and possible mediation: Once the application has been filed and served (in case of a sole application), the other party has 28 days (if they’re in Australia) or 42 days (if they’re overseas) to respond. If disagreements arise — for instance, disputes over the date of separation or arrangements for children — mediation may be suggested. Mediation can extend the duration of the divorce process, as it involves meetings, discussions, and potentially multiple sessions to arrive at mutual agreements.
- Final hearing and judgement: After all the above stages are completed, the divorce will progress to a final hearing. In many cases, especially for joint applications, you may not need to attend court. The judicial officer will review the evidence, ensure all criteria are met and, if everything is in order, grant the divorce. Once the divorce is granted, there is a further wait of one month and one day before the divorce becomes final, as outlined above.
While the procedure might seem straightforward and sequential, each step can carry emotional, logistical, and legal significance. And though the timelines may vary depending on individual circumstances, understanding the general outline ensures you’re better prepared for the journey.
How Long Does Property Settlement Take?
Beyond the emotional turbulence of a divorce, the practical implications concerning assets, property, and finances are often significant. Property settlement is an essential aspect of many divorces, ensuring that both parties can move forward with clarity and security regarding their financial futures.
A divorce property settlement refers to the process through which assets, debts, and finances are divided between both parties after separation. This isn’t just about tangible assets like a home or bank accounts; it can also encompass superannuation, investments, and other financial interests.
Find out more about property settlement after divorce.
Much like the divorce process itself, the duration of property settlement can be influenced by several factors:
- Complexity of assets: If the couple has multiple assets, overseas investments, or complex financial portfolios, or a business for example, valuations (and the engagement of experts) and extensive disclosure may be needed. This can cause delay in some matters.
- Level of agreement: A mutual agreement on the division of assets can make the process swifter. If both parties agree on who gets what, it’s likely to be faster than situations where disputes arise and mediation or legal intervention becomes necessary.
- Legal processes: Ongoing negotiations can draw matters out and cause delay, as can instituting court proceedings. Mediation can often be an effective way to reach agreement sooner.
It’s worth noting that while the divorce might be finalised, property settlement can take place either before or after the divorce order has been made. However, it’s crucial to be aware that once a divorce order takes effect, a 12 month time limit commences for parties to file in the Court for property settlement and/or spousal maintenance, or leave may need to be sought to file out of time. For separated de facto couples, this time limit is 2 years from the date of separation. Such leave applications can be expensive and success is not guaranteed. Find out more about how assets are divided in a divorce.
Our Divorce Lawyers Can Help You Through This Process
For more information on how long divorce takes in Australia, reach out to Daykin Family Law today.
Whether you are separating from your de facto partner or spouse, there are often many decisions to make, from the division of finances and property settlement to arrangements for child support and divorce. Our divorce lawyers are here to help you every step of the way. Shannon Daykin is an Accredited Family Law Specialist with extensive experience in all aspects of family law. Contact Daykin Family Law today to arrange a reduced fixed fee initial consultation.
Navigating family disputes can be overwhelming, with emotions and legal complexities making the journey challenging. However, family law is not only about legal battles; it’s also about preserving relationships while addressing concerns and goals, and this is where collaborative practice can help.
Collaborative practice is a process of dealing with these complex issues in a way that focuses on co-operating towards a desired outcome. It really shines when it comes to family law, as it values empathy, understanding, and mutual respect over adversarial interactions.
What is Collaborative Practice?
Collaborative practice, also known as collaborative law, emphasises the importance of co-operative negotiations in family law matters, over traditional methods, that can be more adversarial.
With collaborative practice, separating couples and their lawyers engage in family-focused discussions, aiming for mutually acceptable settlements through transparent and confidential negotiations. They generally enter a binding agreement to avoid litigation, ensuring a commitment to constructive dialogue.
This approach is holistic in nature, and not only involves lawyers but also jointly retained neutral experts where necessary, promoting a comprehensive resolution that considers the well-being of the entire family, rather than focusing solely on individual rights or adversarial tactics.
It’s not just lawyers who sit at the table: therapists provide emotional support, financial planners give economic insights, forensic accountant experts can assist with complex valuation issues and child specialists offer perspectives centred on the well-being of the children, as some examples. This ensures that every facet of a family dispute, whether emotional, financial, or legal, is addressed with the depth and care it deserves.
One of the leading bodies promoting collaborative practice in Australia is the Queensland Association of Collaborative Practitioners, and Shannon Daykin, the Director at Daykin Family Law, is a proud member. So believe us when we say we believe in this approach!
With that out of the way, let’s look at the core values of collaborative law a bit closer.
The Core Values of Collaborative Law
When looking at collaborative law as defined by the Australian Institute of Family Studies, there are a few core values that can be identified.
Voluntary Disclosure
Both parties agree to openly share all relevant information, ensuring there’s no room for hidden agendas or surprises. This creates an atmosphere of trust, essential for constructive dialogue.
Solution-Based Approach
The focus remains squarely on finding solutions that work for everyone involved. Instead of a zero-sum game where one party’s gain is another’s loss, collaborative practice seeks outcomes where all parties can feel heard and validated.
Mutual Respect
Even in disagreements, collaborative practice prioritises respect. Recognising the intrinsic value of each individual’s perspective and feelings fosters a more constructive environment for resolution.
Engagement of Professionals
Depending on the complexity and nature of the dispute, other professionals such as financial advisors, child specialists, or counsellors might be engaged to provide a balanced solution.
Commitment to Avoid Litigation
Both parties, along with their respective lawyers, enter into a binding agreement that they’ll abstain from resorting to litigation while engaged in the collaborative process. This commitment ensures that every effort is channelled towards negotiation and consensus.
Through these central principles of understanding and cooperation, collaborative practice offers an alternative to the often aggressive dynamics of traditional legal proceedings.
Collaborative Practice in Family Law and Divorce
This co-operative practice is especially valuable in family law matters such as divorce and separation. A divorce, by nature, can be contentious and heavy with emotions. However, applying the principles of collaborative law to divorce proceedings promotes an environment where both parties strive for a collective solution.
Instead of courtrooms, decisions surrounding the divorce are made in collaborative meetings, ensuring both parties have a voice. There’s less confrontation, often leading to better, more sustainable outcomes. This approach ensures a fair resolution in terms of tangible assets and financial matters but also a careful navigation of emotional and psychological aspects associated with divorce.
Benefits of Collaborative Practice
Using collaborative practice to resolve disputes can significantly influence not just the immediate outcome, but also the long-term well-being of all involved. When dealing with disputes through Collaborative Practice, it offers a range of benefits that make it a compelling choice for many, such as:
Client Empowerment and Control
Unlike the unpredictable nature of court proceedings, Collaborative practice places the power squarely in the hands of the individuals involved. Clients are active participants, shaping the course of discussions and decisions. This empowerment instils a sense of ownership and commitment to the resolutions reached.
Positive Environment for Children
In family disputes, especially those involving children, the overarching goal is often to ensure their well-being and shield them from undue stress. Collaborative practice, with its emphasis on dialogue and understanding, ensures that children are spared the brunt of adversarial confrontations. Their needs and emotions are prioritised, ensuring a more nurturing environment amidst the upheaval.
Cost-Effective and Efficient
The prolonged nature of traditional litigation can be both time-consuming and financially draining. In contrast, collaborative practice, by sidestepping court battles, often results in quicker and more cost-effective resolutions. The collaborative approach emphasises direct communication, which can lead to swifter consensus and lower costs in the long run.
Preservation of Relationships
Family disputes, if handled combatively, can leave a lasting effect on relationships. Collaborative practice strives to prevent estrangements. By fostering mutual respect and understanding, it encourages parties to move past their differences, preserving familial ties. This becomes especially important in situations where ongoing interactions, such as co-parenting, are inevitable.
Fostering of Mutual Respect
By treating each perspective with dignity and value, collaborative practice allows for more harmonious interactions. Over time, this approach can help replace animosity with understanding, leading to more sustainable resolutions.
Collaborative Practice at Daykin Family Law
If you are going through a family dispute and are seeking a resolution-centric approach, Daykin Family Law is here to guide and support you. Our expertise in collaborative law ensures you’re not just represented but also understood, respected, and empowered. Contact us today for guidance on collaborative methods for any family law-related concerns, and whether this may be right for you and your family.
On October 11, 2023, the Queensland Government, under the leadership of the Palaszczuk administration, marked a significant milestone in the battle against domestic, family, and sexual violence by introducing landmark legislation that will make coercive control a criminal act in Queensland.
The bill, known as the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023, comes in the wake of recommendations from Queensland’s Women’s Safety and Justice Taskforce.
In a public statement, the QLD Government stated that the offence of coercive control in Queensland will carry a maximum sentence of 14 years in prison, and criminalises the actions of an adult under the following conditions:
- the person is in a domestic relationship with another person;
- the person engages in a course of conduct against the other person that consists of domestic violence occurring on more than one occasion;
- the person intends the course of conduct to coerce or control the other person; and
- the course of conduct would, in all the circumstances, be reasonably likely to cause the other person harm (with ‘harm’ defined in the Bill to mean any detrimental effect on the person’s physical, emotional, financial, psychological, or mental well-being, whether temporary or permanent).
At this stage, the new coercive control laws in QLD won’t come into effect until 2025, but this Bill still represents a significant step forward in addressing domestic violence in the state.
What is Coercive Control?
Coercive control is commonly understood as a form of domestic abuse where one individual consistently exercises power and dominance over another through behaviours that intimidate, threaten, or undermine the victim.
Instead of, or in addition to, physical violence, it involves a pattern of manipulative behaviours that may include emotional, psychological, financial, and digital control, aimed at making the victim reliant on the perpetrator and restricting their independence.
The intent often is to trap the victim in the relationship and deprive them of their agency and autonomy. This recent legislation has criminalised this behaviour, recognising its significant detrimental impact on the victim’s physical, emotional, financial, psychological, or mental well-being.
Find out more about the signs of coercive control and what to do when you spot them.
How Did This New Queensland Law Come About?
This law arises from the first report released by Queensland’s Women’s Safety and Justice Taskforce which is an independent, consultative taskforce created by the Queensland Government.
The report, known as Hear Her Voice – Report One – Addressing coercive control and domestic and family violence in Queensland, was first released in 2021 and features 89 recommendations to the Queensland Government on how to reform the domestic violence service and justice systems. These recommendations were devised after listening to more than 500 submissions from predominantly women and girls regarding their experiences with coercive control.
Hear Her Voice - Hearing Queensland’s Women Loud and Clear
The Hear Her Voice report brought to light the pressing issues that many victims face when seeking help. An overwhelming number of victims recounted unsatisfactory responses when reaching out to the police for assistance with domestic violence. This raised concerns about inconsistent and inadequate training for officers handling these sensitive cases. Many victims detailed being turned away, not being believed, or having their experiences minimised by the very people who were supposed to protect them – the police.
The report found that the disconnect and inconsistency in responses had led to a decline in trust in the Queensland Police Service (QPS) among many victims of domestic and family violence. The Taskforce acknowledged that while significant investments had been made in the QPS and officers and teams were doing commendable work, cultural issues persisted, preventing the effective handling of domestic violence cases.
To address these deeply ingrained issues, the Taskforce recommended the establishment of an independent commission of inquiry into the police. This commission’s report led to a $100 million investment into a variety of reforms and initiatives to provide enhanced support and protections to those caught up in domestic violence, among which was the introduction of new laws criminalising coercive control.
What Other Changes Can We Expect?
On top of the new legislation criminalising coercive control in Queensland, the QLD Government has stated there will be:
- Enhanced intervention and better victim support: Increased resources for services to manage and reform offenders and provide additional support for survivors to ensure their safety and recovery.
- New perpetrator diversion scheme: New strategies to hold perpetrators responsible via a court-driven program directing offenders to intervention sessions.
- New aiding violence offence: Charges for those indirectly enabling domestic violence will be established.
- Tougher penalties: New aggravating factors will be introduced to further penalise domestic violence offences.
On top of this Queensland’s Women’s Safety and Justice Taskforce released a second report in 2022 titled Hear Her Voice – Report Two – Women and girls’ experiences across the criminal justice system, which is split into two volumes: volume one and volume two.
Hear her voice – Report two
Hear her voice – Report two – Women and Girls’ Experiences across the Criminal Justice System delves deep into the challenges women and girls encounter within the criminal justice system, both as victims of sexual violence and in roles as accused individuals or offenders.
Report Two outlines a strategic plan for Queensland, aiming to improve our criminal justice system, ensuring those who interact with it – whether as victims, accused, or both – receive trauma-informed care. The Queensland Government stated that it is committed to considering all 188 recommendations from the Taskforce.
What Does This Mean for You?
With these extensive changes and commitments, Queensland residents can ideally anticipate a criminal justice system more attuned to the nuanced challenges faced by victims, ensuring a more compassionate, responsive, and robust framework against domestic and family violence.
The current legislative changes are just the beginning of a broader shift towards redefining how Queensland addresses domestic and family violence.
Reach Out Against Coercive Control
If you or someone you know is being subjected to a situation of coercive control, remember that you’re not alone and there are resources available to support you. Here are some steps you can take to deal with coercive control:
- Recognise the signs: The first step is to understand the signs of coercive control. This will empower you to seek the help you need.
- Reach out: Try and talk with trusted friends and family members, or your medical practitioner or counsellor, about the situation, whether it be your own or someone close to you. If you have no one close to you that you can talk to then reach out to one or more of the following resources.
- Available resources: There are numerous dedicated hotlines available to provide immediate assistance. Here are a few key contacts:
- Relationships Australia (Queensland branch): 1300 364 277
- 1800RESPECT: 1800 737 732
- DVConnect Womensline: 1800 811 811
- DVConnect Mensline: 1800 600 636
- Sexual Assault Helpline: 1800 010 120
- Kids Help Line: 1800 55 1800
- Lifeline: 13 11 14
- Prioritise safety: If you or your children are in immediate danger, call 000 immediately. Safety should always be the top priority.
- Seek legal advice: The intricacies of legal processes can be challenging to navigate. Professional legal advice can help you understand your rights and the options available to you. At Daykin Family Law, our expert team is ready to guide you through these challenging times. Contact us today to find out how we can help.
Please remember, that every person’s situation is different. What helps one person might not be right for another. You’re not in this on your own; there are those out there ready to lend a hand and support you through it.
In this article, we look at how assets are divided in a divorce in Australia.
Navigating the challenging path of divorce is difficult enough without the added worry of how assets will be divided, which can be a mystery for many. This crucial process, often marred by emotional turmoil and tension, is of immense importance as it can significantly impact the financial stability of each party involved.
In Australia, the law provides specific guidelines in essence on asset division in the event of divorce or de facto separation. It’s a fairly complex process, more complex than many think, steeped in legislation and legal intricacies, which mandates careful consideration of several factors.
This article aims to shed some light on these factors, helping you understand how assets are divided in a divorce in Australia, and provide you with the essential knowledge to navigate this path with clarity and confidence.
What are Assets in a Divorce?
Assets that you’ll need to consider when dividing assets in a divorce include (but are not limited to):
- The family home: Often the largest shared asset between partners.
- Vehicles: Cars and any other owned vehicles.
- Businesses/entities: Ran by one or both parties, or a business interest for example.
- Investment properties: Real estate properties acquired as a financial investment.
- Financial investments: This includes shares, stocks, mutual funds, and bonds.
- Family trusts: Established for various purposes such as tax planning or asset protection.
- Personal property: This can include items like jewellery and collectibles.
- Household items: Everyday items that may hold value.
- Savings: Monies accumulated over time.
Alongside assets, you also need to consider liabilities during divorce, for example:
- Personal or car loans: Any personal or motor vehicle loans taken out during the marriage.
- Business loans: Financial obligations tied to any business owned jointly or individually.
- Home mortgage: The outstanding debt on the family home or other properties.
- Credit card debt: Financial obligations from credit card usage during the marriage.
Superannuation and other financial resources also often need to be considered as part of the net assets available for distribution.
Now, let’s look at how to split these assets in a divorce.
How to Divide Assets in Divorce
There are a few common methods used to split assets during a divorce in Australia, including.
Common Methods Used to Split Assets
- Non-legal arrangement: This is often used in amicable divorces, where both parties mutually agree on the division of assets without the need for legal documentation. However, due to the lack of legal paperwork, it leaves room for potential disputes, as one party can later approach the court for financial orders as per the Family Law Act, for example. Due to this risk, it’s not commonly recommended by legal professionals.
- Binding financial agreement (BFA): A BFA is a legally binding document that can outline matters such as how the assets should be divided between the couple. It can be signed at any stage of the relationship – before, during, or at the end. A BFA stands unless there are exceptional circumstances that warrant it being set aside. It’s essential to engage a lawyer to draft and implement a BFA. It is a requirement that both parties have independent legal advice for a BFA to be binding and enforceable.
- Consent orders: Consent orders are a prevalent method used by couples finalising their financial affairs. Both parties agree on the division of assets and submit an application to the Federal Circuit and Family Court of Australia detailing their agreement. A Judicial Registrar reviews and approves these orders, making them legally binding.
- Litigation: This method is typically the last resort when former couples can’t agree on how to divide their assets. The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division2) takes on the responsibility of deciding the division of assets, liabilities and financial resources in the event of dispute. The process can be lengthy (up to a year or more), costly, and requires regular Court attendance. It’s generally avoided unless absolutely necessary.
It’s important to remember that in the case of divorce in Australia, there is no fixed formula for asset division. It’s a misconception that assets are always divided equally; the actual division considers a variety of factors and is not a simple 50-50 split. The Court takes into account each party’s financial and non-financial contributions, the future needs of each party, and the justice and equity of the proposed division, for example. Understanding these issues can help individuals navigate the financial implications of divorce more effectively.
What to Consider When Dividing Your Assets In Divorce
In cases where negotiations fail and both parties cannot agree on property division, a Court-guided process is often necessary. It’s important to understand that divorce, which is the legal dissolution of a marriage, is a separate legal process from asset division and property settlement.
Property division can be finalised while the couple is still living together after separation or before the divorce is finalised. When the Court is involved, a five-step process is used to determine the division of assets. The substantive four steps are, briefly put:
- Valuing the assets: The initial step involves identifying and placing a value on the former couple’s assets, liabilities, and financial resources. This includes assets acquired before, during, and after the marriage. Assets can range from business interests, investments, vehicles, savings, and real estate, to even lottery winnings. Both parties’ superannuation benefits are also included in the asset pool.
- Analysing contributions: The court then evaluates the financial and non-financial contributions of both parties initially, during the relationship, and after separation.
- Assessing future needs: The future needs of both parties are considered next. This involves evaluating factors such as age, health, income, earning capacity, as well as care of children of the relationship under the age of 18 years, as some examples. The Court determines if any adjustments need to be made to the contribution-based entitlement on the future needs of each party.
- The practical effect: The final step involves the Court considering the practical impact of the property settlement on both parties to ensure that the outcome is just and equitable.
Now, let’s look at a specific example of how assets are divided in a divorce in Australia.
Example of Asset Division in an Australian Divorce
Jack and Lily are a married couple who have decided to separate. They have been married for 12 years, during which time they both worked full-time and had roughly the same annual income. They have two children, aged 6 and 9, who will be primarily living with Lily post-separation.
Their assets include:
A family home valued at $1.3 million
Savings amounting to $80,000
Two cars worth a combined value of $50,000
Superannuation: Jack’s superannuation is $200,000 and Lily’s is $180,000
Their liabilities include:
Remaining mortgage on the family home of $500,000
Car loan of $20,000
Credit card debt of $10,000
By totalling all the assets and subtracting the liabilities, we determine the net asset pool:
Total assets: $1.3m (home) + $80,000 (savings) + $50,000 (cars) + $200,000 (Jack’s super) + $180,000 (Lily’s super) = $1,810,000
Total liabilities: $500,000 (mortgage) + $20,000 (car loan) + $10,000 (credit card debt) = $530,000
So, the total net asset pool is $1,280,000 ($1,810,000 – $530,000).
Jack and Lily made equal financial contributions, but Lily took on the role as primary carer for the children in addition. Lily may, in that scenario, receive a higher percentage in her favour on the contributions step.
Lily will continue to be the children’s primary carer, so Lily may also receive an uplift on the future needs factors.
For example, let’s assume the court decides on a 60%/40% division in Lily’s favour. Lily would then receive $768,000 (60% of $1,280,000), and Jack would receive $512,000 (40% of $1,280,000).
Please note that this is a simplified example and actual asset division can be complex, depending on a multitude of factors. It’s crucial to consult with professional legal counsel, such as the team at Daykin Family Law, for guidance tailored to your specific circumstances.
Contact Daykin Family Law if You Need Help Diving Your Assets in Australia
If you’re facing a divorce in Brisbane or Wider Queensland and want more information on how assets are divided in a divorce in Australia, don’t hesitate to contact our team at Daykin Family Law. We’re dedicated to providing you with pragmatic advice to solve your issues efficiently and help you move towards the next chapter of your life.
Divorce or separation can be a challenging time for anyone, especially when it comes to dividing property and finances. As one of the most significant issues to consider during the legal process, property settlement after divorce or separation can cause a great deal of stress and uncertainty. However, understanding the ins and outs of divorce property settlements can help you achieve the best possible outcome for yourself and your family.
In this article, we cover some handy things to know about property settlement after divorce including the legal framework, and the factors that influence property division, and we also look at an in-depth example. Our aim is to provide you with the information and resources you need to navigate this complex area of family law with confidence.
At Daykin Family Law, we believe that a comprehensive understanding of divorce property settlements is essential in achieving a fair and just outcome for all parties involved. If you’re in the Brisbane area, contact us today to speak to our property settlement lawyers.
How Does Property Settlement Work?
Property settlement in the context of a relationship breakdown can be a complex and emotionally charged process. It can involve the division of assets, financial resources, superannuation, and debts between two parties following the end of their relationship.
If you separated from your de facto partner after 1 March 2009, you may have the right to apply for a property settlement and/or maintenance under the Family Law Act.
How To Reach A Property Settlement Agreement
Negotiating a property settlement can be stressful and complicated. Hence, you might consider engaging a lawyer to assist in negotiations with your former partner. Even if you choose not to use a lawyer for the negotiation process, it’s crucial to seek legal advice before signing any agreement. Importantly, this advice should come from a lawyer who hasn’t previously advised your ex-partner.
Ideally, both parties should aim to reach an agreement about the division of property. This agreement can then be formalised into a court order, known as a consent order, which must be adhered to. Another option for a legally enforceable and binding agreement is to enter into a Binding Financial Agreement.
If an agreement cannot be reached, you have the option to apply to the court for property orders, which will dictate how the property should be divided.
Before applying to the court, certain pre-action procedures must be undertaken. Family dispute resolution services are available to help you reach an agreement. Family Relationship Centres might also offer assistance, particularly in cases where children are involved, though they are unable to provide legal advice. We often refer clients to private mediators, and work with a number of highly respected mediators in our field.
For any financial difficulties arising during this process, a financial planner or a financial counsellor can offer guidance. Don’t hesitate to seek professional advice to ensure your rights and interests are well protected.
Can A Property Settlement Agreement Be Changed?
Once lodged with the court, property settlement agreements via Consent Orders can be altered in only defined ways, unless both parties agree to the changes. Please note that even if you both consent, the court will not enact an order unless deemed ‘just and equitable’, essentially meaning appropriate for both parties.
For advice on varying or amending Consent Orders when there is no agreement to do so, contact us to discuss whether you may have grounds and any options.
How To Calculate Property Settlement
The Family Law Act essentially prescribes a four-step procedure to calculate property settlement in divorce, after it is established that it would be just and equitable to have a property settlement. Let’s break down these steps.
Step 1: Identification and valuation
The first step involves identifying and valuing all the property from the relationship or marriage, which also includes debts. It’s important to remember that this includes not just property and assets acquired during the relationship, but also those obtained before or after the marriage (or relationship).
Step 2: Consideration of contributions
The second step is to consider what each person has contributed to the relationship. These contributions could take various forms:
- Earnings from employment or businesses
- Savings accumulated during the relationship
- Gifts and inheritances received
- Property owned before the relationship began
- Improvements made to any property
- Contributions as a homemaker and parent
All these contributions, among others, can be taken into account to ascertain both parties’ entitlements.
Step 3: Future needs factors
The third step involves considering other factors outlined in the law, such as:
- Each person’s future earning capacity
- Age and health of each person
- Care and financial support for children
- Responsibility for looking after other people
- The length of the relationship
It’s important to note that the law does not consider who left the relationship when deciding what a fair division of property is. It aims to ensure the division is just and equitable, given the totality of the circumstances. A party’s conduct rarely has relevance in property settlement matters, but this can occur in certain circumstances.
Step 4: Court’s decision
Finally, the court will decide the exact division of the property. The court’s main concern is essentially ensuring that the division of property is just and equitable in all circumstances. This means that the court will look at all the information presented, apply the law, and make a decision that it considers appropriate.
Remember, while these steps provide a general framework, the exact process can vary depending on the specific details of each case. It’s highly recommended to seek expert legal advice to ensure your rights and interests are properly represented and protected in a property settlement.
Divorce property settlement example
Consider a divorce scenario involving Alex and Jamie where they have attended a mediation and reached an agreement on how to divide their property.
We’ll simplify the 4-step property settlement process to help illustrate how they came to their agreement and what the outcome was.
Step 1: Asset identification
Alex and Jamie’s financial picture is as follows:
Assets:
- Savings: AUD $50,000
- Shared home: AUD $1,000,000
- Alex’s car: AUD $20,000
- Other assets: AUD $10,000
- Total: AUD $1,080,000
Liabilities:
- Outstanding mortgage: AUD $150,000
- Total: AUD $150,000
Superannuation:
- Alex: AUD $80,000
- Jamie: AUD $70,000
- Total: AUD $150,000
Given these figures, the net value of the couple’s combined assets is calculated as follows:
Assets – Liabilities + Superannuation = Net Asset Pool
$1,080,000 – $150,000 + $150,000 = $1,080,000
Alex and Jamie have total net assets amounting to $1,080,000. We call this “the property pool” or “the matrimonial property pool” for example.
Step 2: Evaluate contributions
Next, the contributions each party has made to the relationship, both financial and non-financial, need to be evaluated.
Neither Alex nor Jamie owned any property prior to marriage. While their superannuation holdings are different, their earnings have been relatively similar. Therefore, their financial contributions may be considered around equal. However, Jamie, who has taken on the role of primary caregiver for their two children, has contributed more in the sphere of homemaker and parenting. Recognising this, they agree that Jamie should receive an additional 2.5% in the final division on the contributions step.
Step 3: Assess future needs
With two children who still need care, an adjustment in favour of the primary carer is warranted.
While Alex will be involved in the children’s lives, the parties agree that Jamie, as the primary carer, will receive an additional adjustment of 2.5%.
Step 4: Justice and equity
The parties agree to consent orders that have the effect of both of them retaining super, selling the home and both Jamie and Alex receiving a sum of money (in addition to the other items they each own). See more on this below.
The proposed settlement is arguably just and equitable, given they will each retain super of fairly similar amounts and cash to move forward.
The outcome
After taking into account the entire process, Alex is allocated 45% of the net assets, and Jamie is allocated 55%. This was achieved by agreement.
Jamie and Alex have agreed that there will be no superannuation splitting. They will each retain their respective superannuation entitlements as part of property settlement.
They expect to receive approximately $820,000 once the house is sold and all sale-related costs (including marketing costs) are paid. When you take out the sale costs, the total net pool comes down to $1,050,000 in total.
Therefore, the effect of the settlement is that Jamie will receive $577,500 (55% of $1,050,000), and Alex will receive AUD $472,500 (45% of $1,050,000).
It is agreed that Jamie will keep the cash savings of $50,000, other assets of $10,000 and her super of $70,000. To achieve a property settlement split of 60% overall on these figures, Jamie needs to receive the sum of $447,500 from the house sale. Her overall property settlement entitlement is then as follows:
$50,000
+ $10,000
+ $447,500
+ $70,000
577,500 (55%)
It is then agreed that Alex will keep his car worth $20,000 and his super of $80,000. Alex will receive the rest of the net sale proceeds, totalling $372,500. His overall property settlement entitlement is then as follows:
$20,000
+$80,000
+$372,500
$472,500 (45%)
The above is an example of how the property settlement process can be stepped out, showing you a global approach to dividing property after the breakdown of a marriage. The above does not constitute legal advice. Every situation and circumstances are different, and entitlements can vary. Expert advice is needed to ascertain what is best for you, and how best to achieve your goals.
Daykin Family Law can help you with your property settlement
Here at Daykin Family Law, we aim to guide you through property settlement and divorce, providing expert legal advice tailored to your specific situation. Remember, navigating this process effectively is key to securing your financial future post-divorce. Contact us today for professional assistance in achieving the most beneficial outcome for you.
Discover in what scenarios an ex-spouse or partner may be entitled to your inheritance in Australia after a divorce or separation.
It is quite common that one of the parties to a marriage or de facto relationship receives an inheritance during the relationship. But conflicts can often arise when the relationship comes to an end and the process of property settlement begins. This conflict is exacerbated when the recipient of the inheritance becomes concerned with the prospect of the ex-partner claiming or retaining the inheritance.
An inheritance can be classified as property under the Family Law Act 1975 and for asset division, it is dealt with under property settlement.
Property settlement with an inheritance in the mix can be confusing to separating or divorcing couples. The recipient party might believe that the inheritance is intended solely for their benefit and should not be treated as part of the divisible asset pool to be shared with the ex-partner.
The other party on the other hand, might think that the inheritance was given for the benefit of both partners for family use, or due to other reasons, and therefore should form a part of the divisible asset pool at the end of the relationship.
Can my ex-spouse or ex-partner claim part of my inheritance?
An ex-partner might be able to claim part of an inheritance at the breakdown of the relationship, whether it arises from a marriage or de facto relationship.
The easiest and most practical way to protect an inheritance after separation is by reaching an agreement on how assets including the inheritance would be divided.
The agreement reached can be formalised by applying to the court for a consent order or by entering into a binding financial agreement with lawyers.
Where a separated couple has made attempts to negotiate an agreement and could not finalise one, they can approach the court to decide if the inheritance would form part of the property pool available for distribution, or would be left solely for the benefit of the beneficiary.
If a recipient party of an inheritance took steps to protect what they received, such as by keeping it separate from the pool of family assets, the court may in some cases treat the inheritance as separate from the property pool available for distribution.
There is no formula for how the court treats the division of assets including inheritance during property settlement. The court will consider what is just and equitable and evaluate the facts and merits of each situation. However, the court may consider the following factors to make the decision:
The time the inheritance was received
The court may consider whether the inheritance was received before the relationship began, during the de facto relationship/marriage, or after separation.
Where the inheritance was received before the relationship began, early in the relationship, or before the commencement of cohabitation, the court may more likely consider it as an initial contribution of the recipient party to the relationship and the inheritance may not be separated from the property pool available for distribution.
The treatment of an inheritance received during the relationship will depend on how the inheritance was used and sometimes the intentions of the benefactor can be relevant.
Where the inheritance is monetary, for example, if the money is spent on paying family expenses or used for the benefit of both parties generally, it may be treated as a financial contribution by the recipient party and more likely to be added to the ”property pool”.
This means that the longer the period between when the inheritance was received and the time of separation, the more likely the courts may be to treat it as part of the pool of assets to be divided.
Usually when an inheritance is received after separation, there is a diminished opportunity for intermingling it with the divisible asset pool. The court can either adopt a “two pools” approach, effectively separating the inheritance from the rest of the property pool or treat the inheritance as part of the property pool. In the latter case, when an inheritance is received after separation, a higher percentage contribution may be awarded to the recipient party.
Contributions made by the ex-partner to the inheritance
The court may consider if the ex-partner made contributions to the inheritance. Contributions from a former partner can effectively leave the inheritance unsheltered and open to be treated as part of the divisible asset pool. For example, if the inheritance is an old cottage that needs a new roof, and if the ex-partner fixes the roof, the cottage may no longer be considered an inheritance solely for the benefit of the recipient party and may be added to the divisible asset pool, and certain findings may be made about contributions of both parties to the inheritance instead of just one party.
The court may also consider the intention of the benefactor on how the inheritance should be used.
If the intention of the benefactor shows clearly that the inheritance is meant for the whole family, the inheritance may be added to the property pool to be divided as part of the property settlement.
The size of the inheritance
The size or value of an inheritance can affect whether the inheritance is included in the asset pool or not.
The court may consider the size of the inheritance and compare it to the value of the joint asset pool. Where the joint asset pool is substantially smaller than the inheritance, the courts may include the inheritance to ensure a just and equitable property settlement for both parties.
The court may also consider the contribution of the ex-partner and weigh it against the size of the divisible asset pool. If the divisible asset pool shrinks significantly when the inheritance is excluded and the court believes the exclusion will not allow for a just and equitable division, the inheritance may in that case be treated as a part of the property pool for division.
Relationship of the ex-partner with the Benefactor/Testator
There are situations where the court will consider the relationship between the benefactor and the ex-partner.
The former partner might have had a good relationship with the benefactor. For example, the benefactor might have lived with the partners, and the ex-partner might have assisted in taking care of the benefactor when ill for example.
While taking note of the intentions of the benefactor in the will, the court may also put the ex-partner’s relationship with the benefactor into consideration and add the inheritance to the pool of assets to be divided.
Summary
To sum it all up, in a separation or divorce, an ex-spouse or ex-partner might be able to claim that the inheritance of the other party forms part of the property pool available for distribution as part of property settlement. This depends on several factors as mentioned above.
To avoid a costly legal battle after separation, couples in an intact relationship can consider entering into a binding agreement detailing how their property (including an inheritance) will be treated if the relationship ends.
Every case is different. We recommend that you contact us to discuss your specific situation and how best to approach inheritances and your property settlement.
Daykin Family Law can guide you through the process of property settlement. Contact us today for an overview of your options and how we can help you reach a positive solution.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us at (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
A main concern for people when they separate is what will happen to the property they have accrued during the relationship. It’s no wonder then that questions around the division of property are some of the most common we are asked at Daykin Family Law.
We frequently advise on concerns related to the family home and ownership of property in the event of separation, so we’ve pulled together some of key facts you need to know about property before, during and after divorce or separation.
How do we go about dividing property and assets?
There are several options available when it comes to the division of assets, but for most separating couples, what happens to the family home can negotiated and agreed as part of property settlement. There is no set way how this agreement can be reached, and often depends on reaching an outcome that suits both parties and the children, if any.
Simply put, a Property Settlement is the division of assets and liabilities between a separated couple, whether married or de facto. Property Settlement involves the division of the things you and your partner own or have an interest in. This can include real property, businesses, shares and chattels to name a few.
If you require more information on the process and time constraints in detail, we’ve covered 8 Things You Need to Know About Property Settlement here.
Who pays the mortgage after separation?
At a time when budgets are often stretched, this question is a common one. Firstly, if the mortgage is in both names (‘joint names’) then both parties are legally responsible for paying the mortgage. If payments are not made, by either or both parties, then the bank can take steps to legally repossess the property, despite any separation or divorce proceedings that are in place.
If, in the event that one party, whether living in the house or not, refuses to make mortgage repayments, there are a number of options to consider:
- Contact the lending institution and inform them of the circumstances. It may be better that they are aware of the reason for defaulted payments and may be able to reach a compromise with you on repayments pending final division of your property through the Family Court or Federal Circuit Court.
- If you and your partner can agree to sell the property, this will ensure the mortgage is paid. Any proceeds following the sale can be held in a trust account until you reach an agreement with your former partner.
- In some circumstances, you can obtain a Court Order for spousal maintenance to force your partner to contribute to ongoing mortgage payments.
Whether you keep making mortgage payments depends on a number of circumstances. For example, continuing to make mortgage payments can enhance your property entitlements if those payments are considered to be post-separation contributions in certain scenarios.
In other circumstances, it can be advisable to cease making contributions where that person is no longer living at the property and has to rent new premises and lacks the capacity to make such payments. Ultimately, the decision made surrounding mortgage payments can impact on property settlement . It is strongly advised to seek advice from a family law specialist to decide the best course of action for your individual circumstances.
We’ve separated. Who stays and who goes?
In situations where one spouse is unable to live under the same roof as the other, a ‘holding pattern’ can be agreed that allows one spouse to take rented accommodation and for resources to be made available for this purpose until the property settlement is finalised. If no agreement can be reached and neither spouse wants to leave, an application can be made to the Court for an order granting sole occupation. In order to do this, it may need to be demonstrated that it isn’t viable for both spouses to live together, and that the funds are available to fund a separate accommodation for the other party.
We were in a de facto relationship. Can we still apply to the Court for Property Orders?
Yes, you may be able to. The Family Law Act 1975 contains certain mirror provisions that apply to both married and de facto couples. An application for property settlement arising from the breakdown of a de facto relationship can be made in circumstances where:
- the separated couple have been living together on a genuine domestic basis for two years or more; or
- there is a child of the relationship; or
- a party has made substantial contributions of a certain nature and serious injustice would result.
Can we begin the property settlement process before we divorce?
Yes, you can commence the process at any time. A settlement can be a lengthy process, so it can be advisable to begin the property settlement process as soon as it is feasible. Sometimes, the longer parties wait before dividing the property, the greater the chance that problems may arise, for example one of the parties could be reducing the property pool by wasting, selling or disposing of property.
It should also be noted that the Court will usually identify and value property that exists at the date of the final hearing, meaning property acquired by the parties after the date of separation can be taken into account.
However, it is important to only begin the process when you can think rationally. Where there is any hostility, it is advised to seek the assistance of a lawyer. Separating de facto parties must bring proceedings for Property Settlement and/or maintenance within two years of the date separation and married couples must do so within twelve months of a divorce order taking effect.
We have children. Will this affect the property settlement process?
Putting aside the legal aspects, if you have children, this can bring an emotive aspect to considerations around property, especially in the short term. In what is normally a turbulent time, parents should consider whether it is viable, appropriate and financially possible for one parent to remain in the family home with the children in the interim period of separation or divorce. Some separating couples in this situation prefer the primary carer to stay in the family home to ensure continuity for the children.
While both parties may strive to ensure continued access to the family home for the children, sometimes this may not be feasible. Many primary caregivers are not the primary income earners and may be concerned about how they might be able to make financial ends meet while maintaining continuity for the children in the family home, or how they will solely take on a mortgage.
Alternatives such as spousal maintenance may be an option in this scenario, to ensure one party pays for particular outgoings for a period, even if they are not living in the family home. Where there are financial strains from not immediately dividing the property assets, we strongly advise getting legal advice to try and reach the most balanced outcome for both parties.
What do I do now?
Separation, divorce and property settlement can be one of the most emotional and financially important decisions of your life so it’s crucial to work with a lawyer with the expertise and experience you need to be able to make informed decisions about your entitlements and which course of action is best for you personally and your children.
Daykin Family Law offers a discounted initial consultation wherein you can understand your entitlements and obligations. We can discuss your entitlements and suggest the best course of action to settle the matter quickly and efficiently.
If you believe you can come to an amicable agreement with your partner, it is still important to have that agreement formalised in a binding and enforceable way. Property Settlement can be a complex area of law; therefore, sound and pragmatic advice is needed to ensure that all issues are fully assessed from the outset and steps are put into place to protect you throughout your whole matter.
Each case is different and depends on the individual situation, so contact us today to start the discussion on how we can help you move your financial separation forward.
If you require further information on separation or divorce, check out some of our other articles:
Whether you are leaving a marriage or de facto relationship, you may require a Property Settlement or the division of assets upon the breakdown of your relationship. We’ve pulled together a list of our most commonly asked questions to help you navigate this complex area of law.
What is Property Settlement?
Generally speaking, Property Settlement is the division of assets and liabilities between a separated couple, whether married or de facto. Property Settlement involves the division of the property held by both parties.
The Family Law Act 1975 (Cth) sets out the law regarding Property Settlement and, importantly, deals with people on an individual basis. So, whilst you may have heard stories from friends and family who have been through Property Settlement, it is important to note that those circumstances may not necessarily apply to you and your ex-partner. Every relationship is different, so it’s crucial to obtain advice about your situation and circumstance from an expert.
What is ‘Property’?
Property is generally classed as all of the assets (things you own). This could be in joint or separate names, or could be held by someone else on a party’s behalf. Some examples include;
- Your family home
- Holiday home
- Cars
- Boats
- Household effects (anything from the sofas to the cutlery)
- Personal items such as jewellery and clothing
- A business
- Savings and superannuation
- Shares
- Debts
- Credit cards
- Leases such as Hire Purchase Agreements
- Family pets
It can also include property you held in your own name prior to the relationship, or property you acquired following separation.
Do separating couples need to have a Property Settlement?
Negotiating a Property Settlement is really important – if you don’t finalise your financial relationship, either party is able to come back and make a claim for property settlement at a later date. In this case, the Court considers the property at the date of proceedings rather than the date of separation. This could mean that any debt accrued by the other party is brought into the property pool in some circumstances, despite the debt being accrued after separation. This can apply to superannuation and savings, assets acquired with another person right through to extreme cases like a lottery win. Aside from physical property, practical issues such as mortgage payments, personal loans and credit cards also need to be taken into consideration.
Whilst Property Settlement can be the most complicated part of the separation, it is also one of the most important steps to take, as it finalises your financial relationship. This means that neither party can make any further property settlement claims against the other if the agreement is made binding and enforceable or property settlement Orders are made by the Court.
What are the time constraints for Property Settlement?
Whether you have recently separated from a marriage or de facto relationship, you are able to apply for property settlement now. You don’t need to wait for a divorce, for example, before having a Property Settlement. This can occur shortly after separation.
Generally speaking, it may be best to consider property settlement as soon as you can feasibly do so. However (with a couple of exceptions) separating parties must bring proceedings for Property Settlement within two years of separation for a de facto couple or twelve months of a divorce order taking effect for a married couple. If a Property Settlement is not reached prior to these time limits, it is possible for the other party to bring an application ‘out of time’ in certain circumstances so you may still be at risk.
I’ve heard that property is usually split 50/50 in a property settlement. Is that true?
Whilst many people think this is the case, there is actually no rule or presumption that dictates the equal division of assets in Australia. Property Settlement is always at the discretion of the Court who will weigh up many factors in making their decision. Some of these factors can include;
- How much money each party contributed
- Contributions made towards parenting and homemaking
- The length of the relationship
- Non-financial contributions
- The current and future needs of each person
The longer the relationship, the more likely it may be that the Courts may consider both the contributions of the parties are equal, but the reality is that each case is unique and different.
Whether you reach an agreement out of Court, or have to litigate to obtain your entitlement, the law we advise you on when it comes to property settlement is the same.
Broadly, this process involves:
- Ascertaining the legal and equitable entitlements of both parties (which can include assets in another person’s or entity’s name), known as the “property pool”;
- Assessing whether or not it is just and equitable to make orders for property settlement and, if it is, assess each party’s financial and non-financial contributions to the property pool and the relationship;
- Considering other relevant factors which will impact on your entitlement, such as your state of health, discrepancies in respective earning capacities and care of children of the relationship under the age of 18 years; and
- Considering whether the structure and monetary outcome of the proposed settlement is just and equitable or, in other words, appropriate
What if my ex-partner doesn’t want a Property Settlement?
Sometimes, one party may request the property settlement and the other party does not want to finalise the settlement. In this case, your family lawyer can contact the other party in writing to progress towards financial separation, or suggest mediation. If this is refused, a last resort is then to bring an application for property settlement despite their wishes. The Court will then decide on a just and equitable division of assets and liabilities, as well as superannuation.
How do I start the Property Settlement process?
Whether amicable or not, the best way to finalise the Property Settlement is to commence the process as soon as is practical. At Daykin Family Law, we normally start the process by advising you of your entitlements, then proceed to draft a letter to send to the other party with your agreement. Where it is possible, we will try to avoid the necessity of going to Court by coming to an amicable resolution.
In some cases, where there is little likelihood of achieving an amicable result through mediation, we will assist you in commencing Court proceedings.
The Property Settlement process is aimed at negotiating a settlement outside of Court, and as such, most cases do not go to trial.
What should I do next?
If you are considering a Property Settlement, the first thing to do is to understand your rights and obligations. Daykin Family Law has extensive experience in navigating, resolving and finalising property settlement and financial issues upon the breakdown of a relationship, including acting for third parties whose interests are affected by marriage or de facto relationship breakdowns.
Daykin Family Law offers a discounted initial consultation wherein you can understand your entitlements and obligations. We will work out your entitlement and suggest the best course of action to settle the matter quickly and efficiently.
If you believe you can come to an amicable agreement with your partner, it is still important to have that agreement formalised in a binding and enforceable way. Property Settlement can be a complex area of law; therefore, sound and pragmatic advice is needed to ensure that all issues are fully assessed from the outset and steps are put into place to protect you and your interests throughout your whole matter.
Each case is different and depends on the individual situation, so if in doubt, contact us today.
If you require further information on separation or divorce, check out some of our other articles:
There is a misconception that a divorce will also resolve your property settlement with your ex-partner: It will not. Obtaining a divorce order will not give you finality in your financial relationship with each other.
Divorce in Australia
For divorce in Australia, parties must complete a divorce application and file it with the court. The court will consider this material at a hearing, the date of which is set down when you file the application (usually 3 or so months after filing). If a divorce order is granted, this will provide you with a legal separation, however it will not automatically alter your property interests under family law.
To be eligible to apply for a divorce, you must have been separated from your spouse for at least 12 months. There can be circumstances where parties may have separated but they remain living together under the same roof for a period time or have had short periods of reconciliation and then separated again on a final basis. You may still be eligible to make a divorce application in these situations. You should speak to a lawyer to discuss your particular circumstances and confirm your eligibility and the court’s requirements.
Options for finalising a property settlement
Separate to a divorce, a property settlement will provide you with an alteration of property interests (for example, determining who will keep the house, or whether it needs to be sold; who will be responsible for the credit card liabilities; how superannuation will be split between you etc). The process for finalising a property settlement will depend on whether the parties have agreed or can come to an agreement regarding how their property interests should be divided.
If both parties agree
If a separated couple agrees to alter their property interests and the terms of that property settlement, they can have a legally binding and enforceable agreement by:
- Entering into a binding financial agreement; or
- Applying to the court for consent orders.
Using either option, or in some cases both options, your lawyer will need to take your detailed instructions in relation to the property that you own (including assets, liabilities, superannuation and financial resources), the contributions made by both parties throughout the relationship and any factors which may impact on the parties moving forward (such as age, health, income disparity, care of children etc). They will assess your entitlement and confirm whether your agreement is in line with what the courts would consider is just and equitable. They will then draft the required documents for you to affect the property settlement. There will be different processes from this point depending on which option you choose: binding financial agreement or consent orders.
If both parties cannot agree
Mediation is a process whereby the parties attend upon a mediator, with or without their solicitors present, to attempt to come to an agreement about the division of their property interests. The mediator should assist the parties to keep the conversation to relevant information and work with you to generate options for terms of settlement which are acceptable for both of you. If an agreement is reached at mediation, you can approach a lawyer to draft the relevant documents and finalise the property settlement.
Court proceedings are started as a last resort if the parties cannot agree on how to divide their property interests. Proceedings are not usually commenced without attempts to resolve the matter by way of negotiation or alternative dispute resolution as they can be costly and emotionally taxing on all parties involved.
A formalised property settlement will usually be required
It is important to finalise your financial relationship with your ex-partner. An informal agreement, even if it is in writing, may not be binding and one of the parties may be able to make an application to the court seeking an arrangement that is different to the agreement made between you (provided they apply within the relevant time limit). Therefore, having your agreement formalised through a binding financial agreement or consent orders is necessary to protect yourself moving forward. A lawyer can assist you with this and guide you through this process.
Time limitation for property settlement – married couples
There is a 12-month time limitation for a married couple to apply to the court for a property settlement or for spousal maintenance after a divorce order takes effect. Whilst the court can grant leave to apply outside of this time limit, it can be a difficult and costly process and success is not guaranteed.
In some cases, we recommend that parties enter into substantial negotiations before divorcing which often results in a resolved property settlement before an application for divorce is even made or a divorce order is granted.
What if we weren’t married?
Former de facto couples are substantially afforded the same rights under family law legislation to a property settlement as married couples. The time limitation is different however for de facto couples, whereby they have 2 years from the date of separation to make an application to the court for property settlement or maintenance. Like married couples, the court can grant leave to apply outside of this time limit but, again, this can be a difficult process and success is not guaranteed.
Talk to an expert
Contact Daykin Family Law to discuss your options with our Accredited Family Law Specialist & Director, Shannon Daykin. Let us help you navigate separation, divorce and the property settlement process in a cost effective and efficient manner.
