The Family Law Act 1975, amongst other things, governs how matrimonial property is to be divided at the end of a marriage or de facto relationship.
Australian Family Law uses a “no-fault” system for separating couples. This means that the decision to separate and divorce can be made unilaterally, without any repercussion with respect to one’s entitlement to matrimonial property. Another way to put it is that Australian Family Law does not seek to determine which of the parties is to blame for their separation.
When can you settle property disputes after separation?
You do not need to be divorced to formalise a property settlement agreement. Negotiations can commence immediately upon separation, ideally in consultation with an experienced Taylor & Scott Family Lawyer.
Entitlement to property
Your initial consultation with an experienced Taylor & Scott Lawyer will involve a thorough review of all of the relevant facts of your case, including financial and non-financial contributions made by or on behalf of you and your former-spouse throughout your relationship, and post-separation.
Family Law property matters are a discretionary area of law. This means that, while the Family Law Act sets out the relevant considerations for the Court, it does not specify the weight which is to be applied to each factor. The result is that, having regard to the same facts and evidence, different Judges will arrive at different outcomes. Your experienced Taylor & Scott Lawyer will, therefore, advise you as to the range of possible outcomes in the event that your matter was determined by the Court. The range of possible outcomes is incredibly useful in negotiating a settlement without the need for Court intervention.
The likely outcome of each case is heavily dependent on the relevant facts, such as:
- The length of your relationship;
- Your respective financial positions at the commencement of the relationship;
- Salary and other income;
- Gifts, inheritances and windfall gains;
- Housekeeping and maintenance;
- Post-separation issues;
- Age of the parties;
- “Future needs” issues, such as respective income earning capacities, the parenting arrangement going forward, or one’s financial resources.
There is no presumption or “starting-point” when assessing ether party’s entitlement to matrimonial property under the Act.
Can property settlement include assets purchased after separation?
The first step of the Family Law process is to ascertain the content and value of the matrimonial property. This will include all assets, including superannuation, in your name, the name of your former-spouse, or in joint names. It does not matter when or how the assets were acquired.
The Court might also find that assets held in trusts, companies, or by third-parties, are actually matrimonial property for the purposes of the proceedings. In these cases, the Court has broad powers to make orders binding third-parties and entities.
How long does it take for property settlements to be finalised?
The time it takes for a property settlement is dependent on various factors including the willingness of both parties to cooperate; whether an agreement is able to be reached, and the amount of property available for division.
In the most straightforward of cases, Taylor & Scott Lawyers can advise you on and prepare settlement documents to formalise an agreement reached with your former-spouse. Such matters can be finalised within a matter of weeks. If you and your former-spouse are yet to reach an agreement, we will represent you during the negotiation process in the hopes of reaching an amicable resolution without resort to litigation. The timeframes for such a process vary depending on the complexity of your matter and the level of cooperation between you and your former-spouse.
At Taylor & Scott Lawyers, we take every opportunity to negotiate a resolution efficiently and amicably. In the unfortunate event that litigation is necessary, however, our lawyers will guide you through the Court process with confidence and clarity.
Applying to the Court for property settlement Orders must be done within the relevant time-limitation periods, as follows:
- Married couples: Your property settlement application can be made from the time you separate up to 12 months after your divorce takes effect.
- De facto couples: Your property settlement application can be made up to 24 months from the date of separation.
You will need leave of the Court to file an application outside of these time limitation periods.
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