Property settlement involves the parties agreeing through a binding financial agreement or the court making orders through Consent Orders that divide the parties' assets between them.
Whilst parties have to wait 12 months from the time that they separate until they can apply for their divorce, they can resolve property matters between them or make an application to the court in relation to property settlement immediately following their separation. Indeed, they can even apply before separation.
However, a divorce does have an effect on whether you can make a property settlement application to the Family Court if you have not already resolved those matters. Once a party has applied for a divorce and a decree absolute dissolving the marriage has been made, the parties only have 12 months from that time to make an application for property settlement and/or spousal maintenance.
The Family Law Act applies to the property of people who have been married. If you have never been married to the other party, then the law in relation to your property is the law of the State in which you reside or where the property is situated. In that case, you should refer to the relevant de facto information and kit.
The court is required to only make an order changing property interests if it is satisfied that in all the circumstances it is fair to do so. Section 79(4) of the Family Law Act 1975 details the matters to be taken into account by the court in considering whether any orders should be made altering property interests. Those matters are:
The financial contribution made by each party to the marriage or a child of the marriage, to the acquisition, conservation or improvement of any of the property of the parties to the marriage or to property that used to be owned by both/either party of the marriage.
The contribution (other than a financial contribution) made by a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or to property that used to be owned by both/either party of the marriage.
The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
The effect of any proposed order upon the earning capacity of either party to the marriage.
The matters referred to in subsection 75(2) so far as they are relevant (see below).
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide or might be liable to provide in the future, for a child of the marriage.
The above information is an extract from the AussieLegal Family Law Kit which includes detailed information and case studies on the Family Law Rules, Divorce, Child Residence & Child Access, Property Settlements, Child Support and Spousal Maintenance. The Family Law Kit also includes a Property Settlement Calculator which can help you estimate what your fair share of the matrimonial assets you are entitled to in the event of separation.
The Kit will be an invaluable guide you if you choose to act for yourself when making an application to the Family Court. Alternatively, if you choose to have a lawyer acting for you, the Family Law Kit will help you better understand what your lawyer is doing, help you ask the right questions and help you make informed decisions.
Click on the link above to read more about the Kit.