Is there a time limit to do a property settlement?
Parties to a marriage can complete a property settlement at any time after separation, however once you are divorced you have only 12 months from the date of divorce to make an application to the Court for a property settlement or spousal maintenance.
Parties to a de facto relationship have only 2 years from the date of separation to make an application to the Court.
What is the process to divide our property?
Whether parties were married or in a de facto relationship the process in dividing property is the same. In considering the appropriate division of the property pool there is a four step process:
- Identify and value all the assets and liabilities;
- Assess the financial, non-financial and homemaker/parent contributions each party made to the relationship;
- Consider whether there should be any adjustment to either party based on their future needs;
- Consider whether the proposed division of property is just and equitable in the circumstances.
We have reached an agreement to divide our property, now what?
Once an agreement is reached there are two ways in which it can be finalised, an Application for Consent Orders or Financial Agreement. We can provide you with advice as to which is appropriate in your circumstance.
We cannot agree on how to divide our property, now what?
If an agreement cannot be reached it may become necessary to commence Court proceedings. Once Court proceedings are commenced, negotiations to settle the matter can continue. Most matters that are filed in Court settle and do not proceed to a trial.
Were we in a De facto relationship?
For most people it is not disputed whether or not there was a de facto relationship and a property settlement is a straight forward process, however in some cases the existence of a de facto relationship is not clear.
A de facto relationship can exist between two people of the same sex or the opposite sex, provided they are not legally married or related by family and having regard to all of the circumstances they have a relationship as a couple living together on a genuine domestic basis. There are a range of factors considered in determining whether two people had a relationship as a couple, including:
- The duration of the relationship,
- A common residence;
- Sexual relationship;
- Financial dependence or interdependence and arrangements for financial support;
- Ownership and use of property;
- Commitment to a shared life;
- Whether the relationship was registered;
- Care of children;
- Reputation and public aspects of the relationship.
In addition to the above, for there to have been a de facto relationship at least one of the following criteria must be met:
- The period of the relationship was at least 2 years;
- There is a child to the relationship;
- A party to the relationship made substantial contributions and the failure to make an order would result in serious injustice to them;
- The relationship was registered.
