Property Settlement After Separation – Your Questions Answered
The breakdown of a marriage or de facto relationship can be a confusing, emotional, and traumatic time. Navigating the legal system and understanding the intricacies of property settlement can add to the stress and make it downright overwhelming. As experienced property settlement lawyers, the team at Robert Wood and Associates are here to help ensure the property settlement process is efficient, smooth, and as stress-free as possible. While every situation is different, there’s a few questions we are commonly asked, so read on to find out our answers.
What Exactly is a Property Settlement?
Property Settlement is the division of assets and liabilities held by both parties following a separation or divorce. The Family Law Act 1975 sets out the law regarding Property Settlement.
What Does ‘Property’ Mean?
‘Property’ refers to all assets owned by either or both parties and includes almost anything of value, including:
- real estate
- business interests
- investments, shares, and trusts
- gifts and inheritances
- personal items such as jewellery
- household items such as furniture, appliances, and artwork
It can also include property acquired prior to the relationship or following separation. Liabilities and debts are also regarded as property and will be divided regardless of if they are held jointly or individually.
What is Involved in the Process?
There are three main steps that guide the property settlement process:
- The Court identifies the property that is owned by one or both parties
- The value of the property is determined
- The Court decides whether to order either party to transfer property to the other party and, if so, what is appropriate.
It is a common misconception that the Court will order a 50/50 split, however, there is no rule or presumption that dictates the equal division of assets in Australia. Property Settlements are always at the Court’s discretion and many factors will be considered to determine a fair and equitable outcome. Some of these factors may include:
- The money and assets contributed by each party
- Direct financial contributions, such as wages
- Indirect financial contributions, such as gifts or inheritances
- Non-financial contributions to the relationship, such as parenting and homemaking
- Future requirements – such as age, health, financial resources, and capacity to earn
Is There a Time Limit for a Property Settlement?
A property settlement must occur within 12 months of a divorce finalisation. For de-facto relationships, the window is 2 years following separation. Couples who fail to commence property settlement proceedings within these time limits may lose their ability to apply to the Court. It is possible to seek the Court’s permission to apply for a property settlement out of time, however, this isn’t always guaranteed and will be costly.
What Is the Difference Between a Property Settlement and a Divorce?
These are two different legal processes. A property settlement is the formal division of property following a separation. This can occur as soon as a couple separates. A divorce is the legal termination of the marriage and allows the parties to remarry. You cannot apply for a divorce until 12 months after the date of separation. A property settlement can be formalised without applying for a divorce.
How Do I Start the Property Settlement Process?
Following a breakup, it is important to seek legal advice as quickly as possible. At Robert Wood and Associates, we are home to a team of professional family law specialists and experienced property lawyers. Eastern suburbs locals can rely on us for practical and genuine advice in all aspects of family law, including property settlements, divorce proceedings, and child custody agreements.
We strive to provide a personalised service, tailored to your specific situation. Whether you need guidance surrounding your rights and obligations, assistance in dispute resolution or representation in contested proceedings in the Family Court, we are here to help. To get in touch with a local family lawyer or property solicitor, Melbourne couples can reach out to us online now or make an appointment with us by calling (03) 9762 3877 today.
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