Do I have to be divorced to split the property?
You do not have to be divorced to split property between you. Divorce is a completely separate process to the finalisation of property and finances between parties.
It is important to obtain legal advice on your rights and obligations as soon as you separate or if you are considering separation. And it is advisable to begin negotiating the details of how your assets will be divided as soon as possible after separation.
What about de facto relationships?
A de facto relationship is one between parties of the same or opposite sex who are not married but have lived together as a couple on a genuine domestic basis.
To settle a dispute regarding division of property of a de facto relationship, the Court must be satisfied that you were in a genuine domestic relationship that has broken down, that the relationship had a geographical connection to Australia (except WA), and the relationship was for at least 2 years; and/or there is a child of the relationship; and/or it was registered under a state law and/or one party made significant contributions to the property of the other, and the failure to make an order would result in a serious injustice.
Time limits if you cannot agree on a settlement
A Court application for property settlement must be made within 12 months of the date of the divorce order.
If you were in a de facto relationship, you must make an application to the Court within 24 months of the date of separation.
In some circumstances the Court will, on application, grant leave to file out of time.
How does a Court decide?
There is no simple formula or calculation that can be applied to determine the division of property or finances between separated parties.
The Family Law Act 1975 outlines the matters a court will consider when deciding the division of property and finances. These apply equally to marriage and de facto relationships, and are as follows:
- Identifying and obtaining values of the assets and liabilities owned and owed by each party solely and jointly. Property can include the family home, investment properties, shares in public companies, businesses, trading companies, some trusts, motor vehicles, household goods, debts owed to you and cash.
- Identifying and weighing up the following contributions made by each party:
- direct financial contributions made by each party, such as payments made toward the purchase of assets owned by you or owned by either party before the relationship.
- indirect financial contributions, such as money received from gifts and inheritances from family members.
- non-financial contributions, such as renovations made to the property owned by you during the relationship.
- contributions to the welfare of the family, as parent and homemaker
- The needs of each party for the future, including their age, health, whether they have the care of children and their ability to earn an income.
Depending on your circumstances, you may also be entitled to financial support from your former partner. The Court must be satisfied that you are unable to support yourself adequately and that the other party is reasonably able to financially support you.
A court is obliged to consider specific matters when determining a payment for spousal maintenance, including whether a party has the care of a child under 18 and the party’s age, physical and mental capacity for appropriate gainful employment, and other adequate reason listed in section 75(2) of the Family Law Act 1975.
If your financial circumstances are urgent, we can assist in making an urgent application to the Court.
If you have reached agreement
If the separation is amicable, you and your partner may be able to come to an agreement on settlement of property and finances. CCS Lawyers can assist in ensuring that any agreement made is legally finalised to protect you from further claims from your partner in the future. We can also assist with implementing the agreement, such as taking care of property transfer or changes to companies and trusts, and ensuring any agreements regarding superannuation transfers are implemented.
If you cannot reach agreement on your financial and property settlement, what are your options?
You can attend Family Dispute Resolution to facilitate reaching an agreement with terms acceptable to both parties. CCS Lawyers can arrange attendance with family dispute resolution practitioners for you.
You can negotiate a settlement through your respective lawyers, which may include attendance at a Round Table Conference where both parties and their legal representatives meet to negotiate the terms of the property settlement.
How are property settlements legally finalised?
Property and finance agreements can be finalised by making an Application for Consent Orders to the Court. These applications are made on paper and do not require your attendance in Court.
Settlements can also be finalised by way of a Financial Agreement, a contract between you and your former partner. A correctly drafted Financial Agreement is binding and will oust the jurisdiction of the Court to determine property and financial proceedings between parties.
Both an Application for Consent Orders and a Financial Agreement are important legal documents that should be drawn up by a suitably qualified lawyer.
Incorrect drafting of these documents, particularly Financial Agreements, can render the documents unenforceable and open to challenge in the Court, even many years later.
CCS Lawyers can help you ensure that any agreement reached remains binding and protects you from claims in the future.
What if we still cannot agree?
If you and your former partner are unable to reach agreement despite dispute resolution, then proceedings will need to be issued in the Federal Circuit and Family Court of Australia.
Before making an Application to the Court you must comply with compulsory Pre-Action Procedures. You can find out more about Pre-Action Procedures here.
The procedures include:
- Giving a copy of the pre-action procedure brochure to the other party; and
- Finding out about relevant dispute resolution services available to you; and
- Inviting the other party to participate in Family Dispute Resolution (FDR).
If safe to do so, each party must:
- Cooperate for the purpose of agreeing on an appropriate FDR service; and
- Make a genuine effort to resolve the dispute by taking part in FDR.
If you cannot resolve matters at FDR, the applicant must give the other party written notice of their intention to commence proceedings. The notice must set out:
- The issues in dispute, and
- The orders to be sought if a proceeding is commenced, and
- A genuine offer to resolve the issues, and
- A time, of at least 14 days after the date of the letter, within which the other party is required to reply to the notice.
It is expected that a party will not commence proceedings by filing an application in a court unless:
- The other party does not respond to the notice of intention to commence a proceeding, and
- Agreement is unable to be reached after a reasonable attempt to settle by correspondence.
You must file a Genuine Steps Certificate in the Court when starting proceedings, certifying that you have complied with the Pre-Action Procedures.
To find out about the court process once an application is filed click here.
CCS Lawyers will work with you to ensure that the Pre-Action Procedures are followed and complied with, and that you are protected from any adverse Costs orders.
I have been served with a court application, what now?
If your former partner has commenced proceedings, you should obtain legal advice. You will need to respond to the application within a specific time limit.
CCS lawyers can assist to ensure your rights are protected and your particular facts are brought before the Court.
We can help
Dealing with the complexities of property and financial settlement is stressful but the consequences of not finalising the division of assets properly can impact on the rest of your life.
CCS Lawyers are experienced lawyers and will make sure that you get the best possible outcome.
What happens at the first meeting with CCS Lawyers?
At the first consultation, to gain a thorough understanding of your situation, we will ask a number of questions concerning the financial circumstances of you and your partner. This must cover the beginning of your relationship, during the relationship and the period since separation. You will also be asked to provide a history of the commencement of the relationship, marriage, birth of children and separation.