Do I have to be divorced to divide property?
No, as soon as you have separated you can make arrangements to divide your property and debts between you and your ex partner. The are no requirements for parties to wait until they are divorced.
But a divorce order means you only have 12 months in which to apply for a property settlement. A person in a de facto relationship must apply to the Court within 2 years of becoming separated.
Do we have to go to Court?
No, not at all. If you have already agreed on how things should be divided between you, we can draw up the documents which will formalise the arrangements, and then get underway the legal processes which will result in the the distribution of assets.
What if we can’t agree?
There is an established process in cases where there is disagreement over how property should be divided. Firstly parties need to attempt to reach agreement, either between them or with the assistance of lawyers or by way of mediation.
If this doesn’t resolve the matter then an application for property orders may be filed with the Family Court or Federal Circuit Court.
How does the court decide?
There are specific factors set out in the legislation that the Court must consider when making a decision about a property settlement. That said, the Court does not apply a set formula when dividing marital assets. The Court has retained discretion in this area to ensure that each case receives a custom-made decision because no two marriages are identical.
One of the first steps a court will take in that process is to identify the asset pool owned by the parties, including property, shares, cars, savings etc. This includes things parties brought into the relationship, those acquired during the relationship and also those purchased after separation.
Next the court will weigh up the contributions from both parties, this includes both financial and non-financial contributions, contributions as a parent and home-maker. It can also consider post separation contributions.
Then the court will consider the parties’ ‘comparative future needs’ and whether any adjustment is required in light of those future needs. The factors a court considers include age, capacity to earn an income, parenting roles and financial resources available to the parties separate to the property of the relationship.
The court will make a decision based on what is just and equitable in the circumstances to both parties.
Such a large range of factors leads to variations in every case before the Court.
We can help
Dealing with the complexities of property settlement is stressful but the consequences of not doing it properly can impact on the rest of your life. We are experienced negotiators, and will make sure that you get the best possible outcome.
Contact us to discuss your particular situation with an experienced family lawyer.