Divorce Property Settlement Lawyers

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.

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 complete 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.

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 to do so.