There are five steps to determine an entitlement to property settlement. They are:
- Consider whether or not it is “just and equitable” to make any adjustment to the parties’ interests in the property available for division. For example, if the parties hold all assets in their own individual names and have largely kept their finances separate, there may not need to be a property division.
- Identify and value all the property that is available for division. This includes all assets, liabilities, and superannuation of each party, either owned jointly, separately or by an entity controlled by one or both parties. Once this is calculated, we call this the “property pool”.
- Consider the financial and non-financial contributions made by and on behalf of each party to the acquisition, conservation, and improvement of property. In this step we look at who owned what at the start of the relationship, whether one party was the bigger income earner and whether one party took on the main responsibility for the homemaker and parenting role.
- Consider the future needs of each party, including:
- care arrangements for children of the relationship, especially if they are young.
- the age and state of health of each party.
- the income, property, and financial resources of each party.
- any physical or mental incapacity that impact upon appropriate gainful employment.
- whether there is any disparity in the income earning capacity of either party.
- instances of family violence that made living in the relationship or earning an income very difficult.
- any commitments that are necessary for the parties to support themselves or any other person.
- Consider whether, in all the circumstances of the case, the proposed order is “just and equitable”. Here we typically look at the practical effect of the property division, such as whether it is appropriate for one party to receive only superannuation interests and the other party receives all cash.
It is important to take the time to discuss these steps in detail with your experienced family lawyer given that your case is unique and you have individual needs and expectations going forward.
Dividing property after a relationship breakdown does not have to be all doom, gloom and conflict. With the right help in your corner you might just be surprised how smooth the transition can be!
When you visit your trusted doctor, he or she will assess your medical situation, perhaps carry out some investigations and give you advice/options based on your individual circumstances. We like to think of ourselves as being here to serve you in a similar manner.
We understand and respect that going through a separation will bring up a raft of emotions for you and different people will experience this journey in their own way. After examining your particular situation and considering all key factors, we will usually offer you a couple of options but recommend the pathway which we believe will serve you best. At the end of the day however, we recognise that ultimately it is your path to walk. You are entitled to make the decisions which you feel are best for you and your family and we will respect that.
If you are ready to start the journey, or simply wish to consider your options, contact us today.
Important information to note:
Time Limits
If you have not resolved your financial matters before the relevant time limit, you may be prevented from making a claim for property division or spousal maintenance. Different time limits apply depending on your relationship.
Property settlements and/or spousal maintenance arrangements must be formalized, or court proceedings commenced as follows:
De facto relationship: within 2 years of the date the relationship ended.
Married but not divorced: There is no time limit until there is a divorce order.
Divorced: Within 12 months of the date of your divorce order.
You can apply for a divorce once you and your partner have lived separately and apart for at least 12 months. Whilst waiting for the 12 months to pass, parenting arrangements and property settlements can be resolved.
If your financial matters are not finalised before the end of the relevant time limit, you will need to apply for permission from the Court to make an out of time application. There is no guarantee the Court will grant this permission. If your time limit is approaching, you need to contact us as soon as possible.
