A relationship breakdown is an emotionally difficult time, affecting not only the ex-partners but any children, extended family and friends. Moving forward requires a number of complex financial, practical and legal decisions to be made.
Applying for a divorce
Australia has a no-fault divorce system, and married couples can apply for a divorce order from the court if their marriage has broken down irretrievably. Essentially, the parties must have been separated for a period of at least twelve months, however, in some circumstances, this time may include a period of separation under the one roof. If you have minor children, the court must be satisfied that suitable arrangements are in place for them.
When can I obtain a property settlement?
A property settlement involves dividing assets, financial resources and debts between a separated couple. It legally finalises their financial affairs and enables the parties to move on with their respective financial activities. A finalised divorce is not required to proceed with the division of assets, and de facto couples are also eligible for property settlements under family law legislation.
The following time limits apply for property applications made to the Federal Circuit and Family Court of Australia:
- for de facto partners, any court proceedings for a property settlement must be commenced within two years of separation;
- after a divorce is finalised there is a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance.
How can I finalise a property settlement?
When determining a fair division of property, the parties will need to consider all assets and liabilities, whether they are held individually or in joint names. The combined ‘property pool’ includes a range of assets and financial resources such as real estate and other property, shares, investments, cash, motor vehicles, superannuation, trusts and business interests. Both financial and non-financial contributions are considered.
The parties may come to an agreement between themselves through negotiation and/or mediation and with the assistance of their legal representatives. Court proceedings should be a last resort. When an agreement is reached, it may be formalised through a financial agreement or consent orders.
Financial agreements are also referred to as binding financial agreements, pre-nups or cohabitation agreements. A financial agreement can formalise a property settlement after couples separate. They can also be made before entering or during a relationship, to pre-determine how assets will be divided should a couple separate in the future.
For a financial agreement to be enforceable, strict requirements and formalities must be met and the agreement must not be made in circumstances that would later give a court reason to have it void (for example, coercion, duress, non-disclosure). Each party must obtain independent legal advice and sign an acknowledgement that they are aware of their rights and obligations under the agreement.
In the right circumstances, financial agreements can be a less formal and cost-effective solution to dividing property. We can help you determine whether a financial agreement is appropriate for your situation.
Consent orders are usually considered a more formal way to settle financial matters and may also include arrangements with respect to parenting. The court will need to approve the orders and the application must include full financial disclosure by both parties. The parties do not usually need to attend court, and the orders will be approved if the court considers it is just and equitable to do so.
Parenting arrangements can address matters such as where children live, how much time they spend with each parent and other specific issues in relation to education or healthcare. Under family law legislation parenting arrangements must be made in the best interests of the child. There is a presumption that shared parental responsibility is best for the child, but this will not be the case in all situations. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child and does not necessarily mean that the child will spend equal time with each parent.
Parenting arrangements can be achieved through a parenting plan, consent orders or court proceedings.
Spousal maintenance is where one person from a former relationship provides financial support for the other.
An order for spousal maintenance is generally made for a limited period with the intention of providing a former spouse or partner with some support while they re-establish themselves and set up for their future. Orders can be made on an urgent, interim, or final basis and may provide for payments to be made periodically or in a lump sum.
Spousal maintenance is separate from child support and child maintenance payments, which are paid for the benefit of a child. A party can be ordered to pay both spousal maintenance and child support, however, the court may take into consideration any child support payable when determining an application for spousal maintenance.
An application for spousal maintenance is made to the Federal Circuit and Family Court of Australia and must be made within twelve months of the finalisation of a divorce or within two years after the breakdown of a de facto relationship. There is no set formula to determine spousal maintenance, rather the court will consider a range of factors to assess the circumstances of your particular situation.
A spousal maintenance application requires careful preparation, and a number of financial documents will be required as evidence.
Most family law matters can be settled by negotiation, without going to court, however it is still important to seek legal advice from the outset to ensure that your rights are protected, and the best possible outcome can be achieved for you and your family.