Photo Courtesy: Sam Pearce-Warrilo collected from Unsplash
Separation or divorce can have major financial impacts on the separated partners. Once you are separated from your ex-partner or divorced or your marriage is declared a nullity, you can initiate property settlement. To be eligible for property settlement after separation, you can either be a married or a de facto couple or a same-sex couple. However, the present rules apply to couples who separated after 1st March 2009. If you had separated before that date, a different set of rules apply to you. You may also need financial support from your former partner either for yourself (spousal maintenance) or for your children (child support). You should consult a family law specialist lawyer to assess your entitlements.
In this article, I will discuss the rules of property settlement that you may need to know before you apply for one. I hope this will help you to understand your situation and look for the right legal advice.
1. What is a property settlement under Family Law?
If your relationship with your partner has ended, you may ask for a property settlement. Such an initiative will help you to divide the property between you and your ex-partner. The property settlement can be done -
by an agreement between the separated partners, or
with the help of a family dispute resolution service, or
by a court order
In your case, you may agree with your ex-partner about the property after your separation without going to court. However, you should take legal advice before starting a negotiation with your ex-partner. It will give you a clear idea about your rights and what could be your fair share of the property. Once you reach an agreement, you should also get that checked by a family law expert before you sign the agreement. It will make sure that your interests are covered in the agreement.
2. What can be included in a property settlement?
Under the Australian Family Law, the property includes assets and liabilities. Assets mean the things you own and liabilities mean the things you owe money on. Both assets and liabilities can be owned individually, jointly (with another person or persons), or by a family trust or family company.
The following things that you and your ex-partner owned can be part of the property settlement:
real estate, including the family home,
money including cash and money in bank accounts,
cars, boats, caravans or other vehicles,
investments,
insurance policies,
jewellery & antiques,
inheritances,
shares,
superannuation,
other valuables like furniture, white goods, solar panels, computers,
debts, such as mortgages, loans, credit cards and personal debts.
All the above-listed items can be included in the property settlement. Before the property settlement negotiation, you should organize for the valuation of all the assets. You should also make a list of the liabilities. The value of the liabilities needs to be deducted from the assets before you can determine your share in the property.
In family law, It does not matter:
whose name is on the documents, or
who bought an item, or
who made the debt.
However, the individual contribution and future needs of each party will be relevant in determining the share in the property.
3. What is the rule about family homes in the property settlement?
The family home is generally a crucial part of the property settlement after separation or divorce. It could be especially important to the parties because of their emotional attachments to the house. However, if you leave the family home while going through a separation, it does not affect your right to share the house or property.
If one of the separating partners gets the family home by the agreement or the court order, the other will have the fair share of the assets. So if your partner gets the house in the property settlement, he/she has to buy you out of your share of the house. They might need to refinance the mortgage into their sole name while you get the money against your share.
4. What is the rule about family homes in the property settlement?
Superannuation can be an important part of the property settlement. It can be a very large part of your assets. The law relating to the division of superannuation is quite complicated. It is recommended that you should get legal advice before agreeing to the split of superannuation after the separation.
In property settlement, the superannuation should be split between the partners fairly. A part of your ex-partner’s superannuation entitlement may come to you as a part of the property settlement. In such a situation, the superannuation entitlement will be transferred to your superannuation account. However, you may not be able to access that amount until you become eligible to claim your superannuation.
5. What is the time limit for the property settlement after the separation or divorce?
When a relationship breakdowns between intimate partners, different time limits apply for different types of relationships in initiating property settlement. The time limit is dependent on the nature of the relationship.
Marriage- If you were married, applications for property settlement must be made within 12 months of your divorce becoming final. However, you can apply for the property settlement before the divorce is finalized. You may apply for the property settlement as soon as you are separated from your partner. However, it should not be later than 12 months from the date of your divorce.
Marriage Annulment- If your marriage is declared a nullity; you should apply for the property settlement within 12 months of the decree of nullity being made. You can make the application as soon as you are separated.
De-facto Relationship- If you were in a de-facto relationship, your application for property settlement must be made within two years of the breakdown of your de-facto relationship.
If you want to start property settlement proceedings after the allowed time, you have to ask the court for leave. In such a situation, it is up to the court’s discretion to grant you such permission. The court may deny you such leave. However, there is no time limit to apply for child support or child maintenance.
If you need help with your family law issues or to find a Family Law Specialist Lawyer or Family Dispute Mediator to resolve your legal problems, please contact us at www.lawcircuit.com.au or call us at 0418631798 or email us at bonhi@lawcircuit.com.au. We will help you to find the best legal service. Law Circuit focuses on connecting you to the right legal services without wasting your time or resources. We aim to make your legal journey easier.