What are the time limits for making an Application for a property settlement?
If you are de-facto, you can make an application for a property settlement for up to 2 years following the date of separation.
If you are married, you have one year from the date your divorce becomes final to make an application for a property settlement.
If you want to make an application outside of this time, you must apply to the Court for leave to file an application out of the time limit.
When can you enter into a financial agreement?
In the case of couples who are married or going to be married, you can enter into a Financial Agreement before, during or after the marriage. For de-facto and same sex couples, you can enter into a Financial Agreement during or after cohabitation.
In order for such an agreement to be binding in the event of a separation, both parties need to have received legal advice on the agreement at the time of signing it.
See our fact sheets in relation to financial agreements for more information.
Do de-facto couples and married couples have the same rights? What about same sex couples?
De-facto and same sex couples who separate after 1 March 2009 now have the same rights to a property settlement under the Family Law Act as married couples.
For de-facto and same sex couples who separated prior to 1 March 2009, their rights continue to be governed by the Property Law Act, which does not provide for application for spousal maintenance or superannuation splitting.
How does the court divide assets?
The Family Court takes a 4 step approach to determine what each party is entitled to.
- Identify the net pool of property – this includes all assets, liabilities, superannuation and financial resources of the parties, whether they are held jointly or by one party alone.
- The contributions made by the parties – this includes financial and non-financial contributions.
- The parties’ future needs – this looks at circumstances such as the parties health, income earning capacity and whether there are children to care for.
- Whether the settlement is just and equitable in all the circumstances.
See our fact sheet on Property Settlement for more information.
Can the court make orders regarding superannuation?
The Court can make Orders regarding superannuation similar to other orders regarding property.
The Court can make flagging orders and splitting orders wherein a specified portion of one party’s superannuation is transferred into a superannuation account belonging to the other party. This amount remains as superannuation, not cash, and the receiving party is able to access it as they would their existing superannuation.
I want to leave the home – what can I take with me?
Moving out of the family home can be an incredibly emotional time for both parties. It is important to remember that moving out and leaving belongings behind does not mean that you no longer have a claim on them.
When first leaving it is advisable to take your personal paperwork and belongings, for example clothes and toiletries.
The division of furniture and effects must be made by agreement. If you and your partner cannot agree on what you are to take it is best to just leave it in the home to be dealt with later as part of the property settlement.
It is crucial that neither party disposes of or damages any property.
Who pays joint expenses when one person leaves family home?
It is generally the case that, even if one party leaves the family home, both parties continue to be responsible for the mortgage payments. If both names are on the mortgage, both parties will continue to be liable for the payments until the mortgage is either refinanced to one party or the property sold.
If the party who has moved out of the property is paying rent somewhere else, it may be possible to negotiate with the other party to reduce their portion of the mortgage payment to take into account the rent they are paying.
Can I get spousal maintenance?
Generally, once parties have separated, each person is expected to support themselves. In some circumstances however, a party does not have the ability to maintain themselves for example, they are caring for the parties young children, or they have a disability which means that they are unable to work. In this case, provided that the other party has the capacity to assist, an application can be made for spousal maintenance.
This application can be made at any time an application for a property settlement can be made.
See our fact sheet on Spouse Maintenance for more information.
Can I claim against my partner’s family business or trust?
Possibly. This answer will vary depending on the individual circumstances of each case. It will depend on how the business or trust has been established, who controls it and who are the directors or beneficiaries.
Even if in your circumstances you do not have a claim against the business or trust, it is likely that it will be viewed as a financial resource of your partner and will still be taken into account as part of the overall property settlement.