Whether or not you are entitled to a property settlement depends upon your particular circumstances. Generally speaking though, if you have been married for any period of time you will have an entitlement to a property settlement.
Matrimonial Property Settlement
No. You can pursue a property settlement at any time following separation. It is important to bear in mind that if you are divorced a time limit applies which means you only have one year from the date your divorce takes effect to either finalise your property settlement or commence court proceedings.
A property settlement is determined in four steps. The first step is to identify and value the property pool. The property pool will include assets and liabilities owned jointly, owned by either of you solely or owned by either of you with some other person. The second step is to assess the financial and non-financial contributions made by the parties or on their behalf as well as the contributions to the welfare of the family. Thirdly consideration is given to any adjustment that needs to be made for future factors. Those future factors include, but are not limited to, your ages and health, the ages of children and who they spend their time with, employment capacity, duration of the marriage, child support paid etc. Finally consideration is given to whether the result of steps two and three provides a just and equitable outcome for the parties.
Yes, unless they were the subject of a prenuptial or cohabitation agreement. However the consideration given to those assets will vary depending upon the length of your relationship. For example, in a short relationship the weight attributed to this contribution will be greater than it would in a long relationship.
You might still be able to pursue a property settlement even though the time limit for pursuing that settlement has expired. This will depend upon your particular circumstances. When the time limit has expired you need permission from the court to pursue a property settlement. Consult an experienced family law solicitor to see if you are still able to pursue a property settlement in your circumstances.
There are several avenues available to you to protect your interest in this asset. Which avenue is pursued can depend upon which stage the sale process has reached and ultimately what you are seeking or are entitled to. One option is the registration of a caveat over the property. Another option includes a Court Order either preventing the sale or putting into place directions as to how the sale is to proceed and how the sale proceeds should be held pending resolution of your property settlement.
Although a party to a marriage may not have made a financial contribution to the marriage they may have made a non-financial contribution. Non-financial contributions are considered in determining entitlement to property settlement. Non-financial contributions include being a home-maker and carrying out the parental duties within a relationship. Such contributions can be assessed in a substantial way when determining property settlement entitlements.
Even if you have reached an agreement with your spouse it is important to record that agreement in a manner that will be recognised in the future and is enforceable. Without a properly recorded property settlement it is possible that one party may seek to revisit the settlement and seek an alternate (usually greater) property division at a later time. It is far wiser to invest some time and incur a relatively small expense now than expose yourself to what could be a very expensive and time consuming process in the future. If you have reached an agreement it can be recorded in either a Financial Agreement or a Consent Order.
In most cases the inheritance comprises part of the property pool. There are some circumstances though when the inheritance can be excluded from the property pool.The timing of the receipt of that inheritance will determine how it is considered within the property pool and what weight it has in the assessment of entitlements. For example if it was received very early in a long relationship the weight given to the receipt of that inheritance will not be as great as if it were received at the start of a short relationship. Also the application of the inheritance will determine the weight it has in the assessment of entitlements.
Superannuation is an asset of the marriage. If certain criteria are met it can be divided in a property settlement just as any other asset is able to be divided and shared between the parties. There are options available for a party to obtain information from a superannuation fund about the entitlement that their spouse has in that fund.