Like any major life interruption, going through a divorce will likely be a challenging experience for those involved. Following a relationship breakdown, getting your affairs in order – including property settlement — can be complicated and time consuming. Here at Le Brun & Associates, we believe it is useful to know where you stand, so you can begin the process of property settlement with your former partner.
To answer the question simply: yes, you can apply for divorce prior to property settlement if you wish; however, this is not recommended. Read on for an outline on what to expect during property settlement, and why you should consider undergoing property settlement prior to your divorce being finalised.
What is a property settlement?
Divorce and property settlement are two separate legal matters. From a legal standpoint, divorce is the nullification of a marriage, essentially allowing either party to remarry if they choose to.
Settlement of property within the context of divorce and separation refers to the arrangement made between parties to divide assets, liabilities, and financial resources upon separation.
You do not need to be divorced to obtain a property settlement. However, it is important to keep in mind that if your divorce is granted before obtaining property settlement, a strict 12-month time limit is in place to do so. This time limit is in place to avoid future disputes between the parties.
What is defined as property?
“Property” refers to all capital assets owned by either one or both parties, and broadly includes almost anything of value acquired during or prior to the relationship. “Liabilities’’ are also included under the property umbrella. This is the legal term for any debts owing.
Examples of property include:
- real estate
- insurance policies
- any other assets, such as cars or jewellery
- debts, such as mortgages, loans, credit cards and personal debts.
Once these assets and liabilities have been considered, they are referred to as your “asset pool”. Your asset pool should include all possible items, regardless of whose name is on any documentation, or who you believe has ownership of any one item.
Why you need a property settlement as soon as possible
A property settlement should not only be documented, but also be enforceable in the Family Court. This is because, as we are dealing with an often highly sensitive issue, one or both parties may change their mind, and dispute what was originally agreed upon in an unofficial capacity.
Furthermore, if you or your former spouse accumulate more assets or wealth after your separation, these assets and wealth could be available for the other party to claim their share of.
Even if you and your former partner are on reasonable terms, it is in both of your best interests to engage Family Law experts as soon as you separate, to ensure the property settlement is not only fair but legally binding.
Going to court
Settlement of property can be made with or without the involvement of the Family Court. Even if you and your partner plan to settle property without the court (which is what we would recommend), it is important to seek legal advice. Our compassionate team of Family Law experts can help you divide your assets and ensure all agreements are enforceable and legally binding.
If you do need to go to court to resolve any property settlement issues, the Family Law Courts require the applying parties to make a genuine effort to resolve their matter before filing. You may be required to attend a mediation service, or to try to resolve your matter with the help of a lawyer.
De facto relationships
In Australia, de facto couples are afforded many of the same rights and responsibilities as married couples. This is the case when it comes to property settlement.
To determine whether your relationship can be considered de facto, it must meet the following criteria:
- Both partners must be 18 years or older
- Neither partner can be in a marriage or registered relationship with a third party
- Partners cannot be related by family
- The relationship must include a financial or personal commitment or support of a domestic nature made by at least one partner to the benefit of the other.
The main difference between married and de facto property settlement post separation is the time limit in place. As stated, for married couples a 12-month time limit applies. For de facto couples, a 24-month time limit applies.
The process with lawyers
Identify the properties
Both parties will have to determine and work out what the asset pool is in order to decide how to divide it.
The contributions of each party will be considered during property settlement. This can include both financial and non-financial contributions, including gifts from family and friends, taking care of your children or work completed to improve the home.
Assess future needs of each party
The third step is assessing future needs. “Future needs” will be assessed on a range of factors, including earning capacity, health issues and the responsibility of children. One party may need a certain standard of finance to support their living situation, for example.
Consideration about a Fair Settlement
The Family Law Court will determine if their decision to divide assets will be equitable and reasonable to both parties. Separated couples are encouraged to work out their property settlement prior to going to court.
Finding the best outcome with a lawyer
At Le Brun & Associates, our dedicated team of Family Law and property settlement lawyers can help you with a tailored approach based on your individual circumstances. We will work with you to get a fair and equitable outcome and discuss all your options so that you are fully informed of all important steps you need to take through this process. We offer urgent and prompt advice to ensure you make the correct decision.
Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, you can rely on us to help you through this difficult time.