You may apply for an Order for property settlement to the Family Court or Federal Magistrates Court at any time. However, as per the Family Law Act 1975 (the Act), there is a strict time restriction of 12 months after divorce for married couples to apply for property settlements.
It is advantageous for you to try and reach out an agreement with your ex-partner regarding division of your assets.
The Court requires the separating couples to make a genuine effort to reach on an agreement between them, before commencing any Court proceedings.
You can sort out your property settlement matters by mutually agreeing with your ex-partner and dividing the property amongst yourselves without involving the Court or can seek to formalise the agreement by applying for Consent Orders in the Family Court.
If at all the process fails to result in resolution, then you may commence Court proceedings for a Court determination as to property settlement.
You may apply to a Court for Financial Orders, including Orders relating to the division of property and payment for your ex-partner’s maintenance.
We always recommend consulting with a property lawyer in these situations, but this article outlines the four mail steps of the property settlement process.
The 4 Step Process
The 4 step process which is adopted by a Court in assessing property settlements consists of the following steps:
Step 1: Establishing net asset pool and valuation of assets
All assets are taken into account, irrespective of whether they are acquired before or during the marriage or after the separation. Property includes almost everything of value such as real estate, shares, cars, jewellery, savings, furniture and many more.
Step 2: Contributions towards the net asset pool
The second step is to calculate the partners’ contribution towards the marriage or de facto relationship, both financial and non-financial and also to evaluate the contribution made as a homemaker or parent. Initial contributions are also considered such as gifts, inheritances and money received during the course of the marriage or de facto relationship.
Step 3: Future needs & adjustments
The third step is to calculate the future needs, taking into account a range of things such as age, health, income earning capacity, properties, care and support of the children and financial circumstances of any new relationship.
In this stage, the Court also considers whether any adjustments should be made for the future needs of the partners.
Step 4: Practical effect
The fourth step is to consider the practical effect on the proposed property settlement and also to achieve the same in a just and equitable manner.
Both partners have clear obligations to make full and honest disclosure about their respective financial circumstances. A failure to make such can have very serious consequences.
Whether or not the agreement can be reached, the rules governing the division of assets are complex, and you should seek legal advice before making a final decision. Our expert Sydney-based property lawyers at Owen Hodge Lawyers are always ready to help you in this regard and will endeavour to help you in achieving the best possible results.