Frequently Asked Questions (FAQ’s)
Do I have to be divorced to do a property settlement?
As soon as you have separated you can make arrangements to do a property settlement and split your property and debts between you and your ex partner, you do not have to wait until you are divorced.
Do we have to go to Court?
No. If you have already agreed on a property settlement, that is, how things should be divided between you, we can draw up the agreement in a document called a consent order which will legally formalise the agreement regarding division of your property and debts, and guide you as to the legal processes necessary to implement the agreement.
What if we can’t agree?
There is an established process in cases where there is disagreement over how property should be split.
If an agreement cannot be reached, an application to the court can be made seeking an alteration of the property interests of the parties.
This application must be made within 12 months of your divorce becoming final.
How does the court decide?
If the court has jurisdiction to make an order altering the property interests of the parties, it does so after considering the following 5 step process:
- Is it just and equitable to make an order given the parties’ circumstances?
- What is the nature and value of the property interests of the parties, including superannuation?
- What have been, and continue to be the financial, non-financial and homemaker contributions to the maintenance and upkeep of that property?
- What are the parties’ future needs, as defined by factors set out in section 75(2) of the Family Law Act?
- How can an order be made which is just and equitable?
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How is the property divided between the parties involved?
There is no set way on how property is to be divided between separating parties. The parties can enter into negotiations through their respective lawyers to try and negotiate the division of assets between them or they may attend a mediation with an independent mediator who will assist them to try and reach an agreement on the division of their assets.
If the parties cannot come to an agreement, an application to the Federal Circuit Court may be necessary.
If the matter is determined by a court, there is a 5 step process that the court undertakes in order to determine how the property of the parties is to be divided, as set out above.
What is the difference between a property settlement and a divorce?
A property settlement is the division of assets between parties in order to end their financial relationship.
A divorce is the formal ending of a marriage.
Is there a time limit for applications to the court seeking property settlement orders?
If the parties were married, application for property adjustment orders must be made within 12 months of your divorce becoming final.
If the parties were in a de facto relationship, applications for property adjustment orders must be made within 2 years from the final date of separation.
Can I still apply for a property settlement even if everything is in my former partner’s name?
Many things come into consideration when deciding who gets what property. If everything is in your former spouse/partner’s name, you can still request a property settlement, to alter the interests of the property more in your favour. In these circumstances, it is best to seek legal advice from an experience family lawyer as soon as possible to avoid your former partner selling off assets without your knowledge or consent.
Are domestic tasks considered a contribution towards property?
Yes. domestic tasks are considered relevant when valuing the contributions of parties directly and indirectly towards the acquisition, maintenance and conservation of the property pool.
What if my former partner wants to sell the property but I don’t?
If the property is in joint names, both parties consent is needed in order to sell the property. If the property is in your former partner’s sole name, we recommend seeking urgent legal advice from an experienced family lawyer to find out what options are available to protect your interest in that property, until a formal property settlement takes place.
What happens if my partner moves out of the property and stops paying their share of the mortgage?
The party living in the property should in most circumstances be responsible for paying the mortgage and expenses for the home.
In circumstances where one party does not work and does not earn an income to financially support themselves, a court may order that the party not living in the property pays the mortgage by way of spousal maintenance if they have the income available to do so.
It is important to note that the bank does not care who pays the mortgage as long as it is paid. Therefore, if the mortgage is not being paid, the bank will chase both parties who are on the mortgage for payment.
A failure by both parties to pay the mortgage may affect your credit rating.
This is why it is very important to come to an agreement following separation about which party pays the mortgage and the outlays for the home.
If you are living in the home and you are unable to pay the mortgage, we suggest contacting your bank, advising them that you have recently separated and requesting to enter into a hardship/interest only payment scheme for a few months, while your property settlement is being sorted out.
If my spouse acquires property following our separation, am I entitled to any of it?
Any property that is acquired post separation is included in the pool and included as part of the property settlement.
However, arguments may arise as to whether there should be an adjustment to the party who paid for that asset, if the asset was purchased from income acquired post separation.
In some circumstances, the court will quarantine certain assets acquired post separation and consider them in a separation ‘pool’ to the other pre-separation assets, where it is appropriate, just and equitable to do so.
What happens in the initial consultation for domestic violence? How does a domestic violence order protect me?
We can discuss your right to file a protection order against the other party, to protect your safety and the safety of your children.
Click the link to answer the most frequently asked questions in relation to domestic violence order applications.
Want more information?
Check out our Common Questions page and the following family law news articles:
- What to do and what not to do when you separate
- Why you should formalise your property settlement;
- Is Domestic violence relevant in a property settlement?
- 6 secrets revealed to protect your assets
- 10 tips to protect your assets
- 6 things you must know before hiring a family lawyer
- Your Duty of Disclosure
- Spousal Maintenance – supporting your ex partner after separation
- Initial contribution of assets in a long relationship
- What is the just and equitable requirement?
- Chancellor & Mccoy – no property order just & equitable after 27 year relationship
- Am I in a de facto relationship?
- Property acquired after separation – how is it treated?
- Future inheritances – when are they taken into account?
- Failure to disclose an asset can derail consent orders
- Consequences of Defaulting on property orders
- Varying property orders
- Who stays in the home after separation?
- Can the court order someone to leave the house – ouster orders
- Money lent from parents – gift or loan?
- The impact of centrelink fraud on a property settlement
- CGT rollover relief for transfers of property pursuant to family court orders
- Costs orders
- Divorce – what you need to know
- Going back to work after divorce
You may also like to check out our family law information videos for helpful tips, advice and information following separation:
- What is my separation date?
- How do I leave a relationship with no financial means?
- How a court determines your property settlement entitlements
- Time limits on property settlements
- 6 things you must know before hiring a family lawyer
- What to do and what not to do when you separate
- How to formalise a property settlement or parenting agreement
You may also find the following family court information pages & fact sheets helpful:
- Property and finances after separation;
- Reaching an Agreement without going to court;
- If you agree about property & finance;
- If you don’t agree about property & finance;
- Complying with Financial Orders.
Click the links on our page to find out more information about superannuation splitting, child support, spousal maintenance and your obligations in relation to financial disclosure in a property settlement matter.
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.
Our property settlement lawyers empower you with advice, educate you about your options and provide you with practical and strategic advice to enable you to achieve the best, quickest and most cost effective resolution to your legal problem.
