The short answer to this question is, yes. However, there is far more to the story, and it is important to look at the full picture.
Divorce – a formal end to an agreement
Divorce is a formal legal ending to a marriage agreement. The order that nullifies the agreement is issued by the Court and can follow a joint application – where both parties agree on the application, or a sole application where only one party wants to apply for divorce. The Sole application is somewhat more complex, and therefore, more expensive.
An application for divorce cannot be made less than 12 months from the date of separation, but equally, there is no requirement to divorce – unless either party wishes to remarry. While most people will wish to live apart after separation, there is provision to recognise separation under the same roof. Under that arrangement it is necessary to demonstrate such things as:
- Separation of sleeping arrangements
- Separation of financial responsibilities
- Lack of any ongoing sexual relationship
- Whether friends and family have been made aware that the relationship has ended
Timeframes – are there limits?
Once the 12-month timeframe has been met, if divorce is granted, then there is a further limit of 12 months within which a property settlement must be applied for. It is important to note that a property settlement may be agreed to at any time from the date of separation.
In the case of de facto relationships, the time limit for property settlement application is 2 years from the date of separation.
Financial settlement – what are the options?
In the case of married couples, where divorce does not occur, there is no requirement to reach a financial settlement. While this is legally allowed, it is probably not a good idea.
It is extremely important to note that the value of an asset pool for the purpose of a property settlement is the value that applies at the time of the settlement, not at time of separation or divorce. It is entirely possible that after separation, either party’s assets may change significantly for many reasons, including:
- Career change
- Changing values in share markets and real estate
Further, each party will need to make a full and frank financial statement at the time of settlement, and while this may come easily at the time of separation, how will full financial disclosure feel possibly years later, with a new partner, new job, and a whole new life?
A financial settlement may be made in several ways:
- Consent orders
- Binding financial agreement
- Settlement imposed by the court
Any method other than these three, such as a verbal, or even a private agreement in writing between the parties, is not legally binding, and can therefore be challenged at a later date. Despite the most amicable intentions, changed circumstances can lead to unexpected outcomes if the agreement is not legally enforceable.
Where the parties agree to a settlement and submit the details to the court, if the court agrees that the arrangement is fair and equitable, it will issue consent orders – that is, orders that the parties have consented to.
A binding financial agreement does not need to be issued by the court, but each party must have obtained independent legal advice, and the agreement needs to be professionally drafted, making legal advice not only essential but required.
Should the above methods fail, then the court will make all the decisions on asset apportionment and issue binding orders.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.