Family lawyer Gisele Reid takes us through the steps.
Q If I separate from my partner, what do I do about our joint property?
A When any marriage or de facto relationship ends, the property and other interests of both parties need to be formally settled between them. Divorce and property settlements are two very different things in Australia. To be eligible for divorce, you must be separated for at least 12 months, but you can be living together under the same roof and still be separated, provided you can show there is no reasonable likelihood of you and your partner returning to married life together.
Formalise your property settlement
Unlike divorce, you don’t need to be separated for any particular period of time to organise a property settlement. However, even when there is no dispute about who should get what, it’s advisable to legally formalise the settlement of your property interests when you part company. The reason for this is that the Family Law Act doesn’t recognise informal property arrangements. Although parting spouses who deal with their property by way of an informal mutual agreement often think they’ve sorted out all their financial exposure to their former partner, it can and often does come back to haunt them. So in circumstances where a couple separates and harmoniously agrees a split of the joint assets, down the track either partner can still challenge that agreement. By law, a simple agreement with your spouse doesn’t necessarily determine your respective property rights. It’s vitally important that the agreement is formalised. The best way to do that is by way of a formal order of the Family Court or a Binding Financial Agreement. Provided the required documents are comprehensively prepared so as to fully deal with all relevant issues, they’ll finally settle and dispose of all mutual financial interests between the parties and ensure there’s no lingering potential for either party to make a claim in the future.
Regardless of whether you are married or in a de facto relationship prior to separation, you can apply to the Family Court or Federal Circuit Court to have financial matters determined and property settled.
Know your time frame for settlement of financial matters
Couples who are separating from a de facto relationship must apply to the Family Court for a de facto financial order within two years of the breakdown of their relationship. Otherwise they will be out of time and will need to seek permission from the Court to apply.
For married couples, divorce does not finalise financial matters, so it is important that you formalise property settlement matters after you separate. However, once you do get divorced, you have 12 months after the divorce becomes final to apply to the Court. After the 12 months has lapsed, you can still apply to the Court, but your application will be out of time and you will therefore need special permission from the Court. Unfortunately, it’s not always granted. So it’s important to seek competent advice as soon as possible, because the day that your divorce becomes final is the day the clock starts ticking on your property rights.
Gisele Reid, Family Lawyer and Migration Agent, Nyst Legal