Property Settlement is available for couples who are separating, have ended their marriage, or are ending their de facto relationship and meet certain other requirements. Property settlement is available for both opposite-sex and same-sex couples.
For married couples, any application to a Court for property settlement must be made within 12 months after any divorce. However, if you have separated but not divorced, the "clock" has not yet started and this time limit is not a concern.
For de facto couples, the situation is more complex; however, the general rule is that property settlement proceedings must start in Court within 2 years of separation.
Do I have to go to Court?
If matters can be agreed out of court - either directly between you, or with the assistance of solicitors - then it is not normally necessary to go to Court. You may wish to have the agreement turned in to a binding Court Order, but this can be done "on the documents" without a full court action.
However, if matters cannot be agreed or negotiated, it may be necessary to proceed with Court action in either the Federal Circuit Court of Australia or the Family Court of Australia.
What does a Court look at in property settlements?
The law governing property settlements is the same throughout Australia. A fundamental part of the process is that all parties must make full disclosure of their financial affairs. If they fail to do so, any agreement can be overturned and (if court proceedings are active) this may be viewed as contempt of court or be a basis for paying legal costs.
There are four steps that any Court proceeds through when considering a property settlement. The same considerations often apply during private negotiations, and extremely simply, are:
Step 1: The Pool of Assets and Liabilities - what are the assets, liabilities and financial resources of the parties? This includes things like superannuation, winnings, court damages or workers compensation payments, redundancy, and many others. The question is not what property existed at separation, but what property exists at the date of trial.
Step 2: What contributions were made? These may be at the very start of the relationship, or even after separation. They may be funds brought in to the relationship (e.g. wages, child support, winnings or inheritances), improvements to relationship property (e.g. house renovations, landscaping, a family business), or assisting with the care of children and the family home so that the other spouse can earn their wages/redundancy/superannuation. It can also include where funds have been wasted by a party, such as drug addiction, alcoholism, spending far beyond reasonable expenditure and trying to hide / not disclose funds.
Step 3: What allowances need to be made for future maintenance? Contributions look at what has occurred in the past, but section 75(2) of the Family Law Act looks at what is likely to be the financial position in the future. This includes age, health, the length of the relationship, earning capacity and education, the need to support others (especially children), maintain a reasonable standard of living, and many other factors.
Step 4: Just and Equitable - a Court still needs to be satisfied that any property settlement is just and equitable (i.e. fair, not 50/50) between the parties. This is even in the case of consent agreements.
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