Property Settlements: The Basics
No-one needs a lawyer if ex-partners can agree about how property and debts should be divided after separation.
Cooroy Legal Centre solicitor Megan Girvan said parties were free to reach their own agreements about how joint property would be shared after separation and divorce. Such agreements did not even need to be written down if ex-partners trusted each other to abide by them.
But what happens if parties can’t agree about what is fair? Ms Girvan said there no single formula used by courts to divide a couple’s property. “No one can tell you exactly what orders a court will make,” she said. “A decision is made after all the evidence is considered and the court decides what is just and equitable based on the unique facts of your case.”
The general principles applied during a property settlement case are the same for married people and de facto couples.
Ms Girvan said a court would:
work out what property a couple had, no matter whose name it was in, and what they owed; then
look at the direct financial contributions by each party to the relationship, such as wage earnings; and
consider indirect financial contributions by each party such as gifts and inheritances from families;
looking at the non-financial contributions such as childcare and homemaking; and then
take into account things like age, health, financial resources, a need to care for children and ability to earn.
“Your property settlement will probably be different from others you may have heard about, because everyone’s circumstances are different,” Ms Girvan said.
“Sometimes, what would be fair in your neighbour’s case might not be fair for you.”
Married people have up to 12 months to apply to a court for a property settlement after a divorce is granted, while de facto couples must apply within two years of their relationship breaking down.
“If you do not apply within these time limits, you will need special permission of a court. This is not always granted,” Ms Girvan said.
“If people can’t reach agreement, they need to get expert advice well before these time limits expire.”
Ms Girvan said that dividing property after separation was not a task for the faint-hearted. “And most people are a bit faint-hearted after a separation, so it pays to seek some guidance early. That way, you have time to negotiate a settlement that is fair and appropriate for you. “
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