(FOR MARRIED & DE FACTO COUPLES)
A property settlement can be done any time after separation. However, time limitations apply if you need to bring an Application in Court for property settlement:
- For married couples, you must apply within 12 months of a Divorce Order becoming final;
- For de facto couples, you must apply within 2 years from the date of separation.
The process of working out how property is divided upon separation is complicated. Despite commonly held beliefs, there is no law prescribing an equal split as every case is determined on its own specific facts. Essentially, there needs to be:
- An assessment of whether there should be any alteration of property interests at all;
- An identification and valuation of assets, liabilities and financial resources (superannuation);
- Consideration of the financial and non-financial contributions that have been made by each spouse (including initial contributions, homemaker/caregiver contributions, lump sums) ;
- Consideration of each spouse’s “future needs” and any other relevant factor the Court needs to contemplate (including the ages and health of parties, care of children, earning capacities).
- Consideration of whether the proposed split is “just and equitable” in the circumstances.
Property is broadly defined to capture anything of value and commonly includes:
- House, Land
- Cars, Boats, Motorcycles etc
- Household furniture
- All Bank accounts
- Shares and Other Investments
- Intellectual Property with market value (such as a patent, trademark, copyright)
- Unused annual leave and long service leave entitlements
- Businesses (partnerships/companies/trusts)
- Tools of trade or other equipment
- And anything else that has a monetary value
We encourage parties to reach agreement about the division of property wherever possible. It is essential that any property settlement agreement is properly documented and finalised correctly so that it is binding and you can move forward with certainty.
Separate to a property settlement, there are some circumstances where a person has the responsibility to financially assist their spouse or former de facto partner if that person cannot meet their own reasonable expenses following separation. There is no formula to calculate the amount of spouse maintenance payable. If spouse maintenance applies, the amount is different in every case. The extent of the financial assistance depends on the higher income earner’s capacity to pay and on the financial needs of the lower income earner.
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