When do I need to start a property settlement?
Property settlements can be carried out at any time after separation. However, you must make your application to the court for a property settlement within 12 months of a divorce order being made OR, for de facto separations, you must make the application to the court within 2 years after the date that the relationship has ended. If you do not make your application within time, you may lose the right to do so. It is important that you seek advice straight away.
How is a property settlement calculated? Is there a property settlement calculator?
Ultimately, property settlements are decided by the federal circuit court. The same laws apply across all of Australia except in Western Australia.
The Court takes the following steps to calculate a property settlement:
- The Court takes an inventory of all assets and liabilities that existed at the time of separation;
- A current value is put on the assets and liabilities (this includes superannuation);
- The Court must then work out a percentage division of the property by considering the financial and non-financial contributions both parties made during the relationship.
The above calculation can be quite complex so unfortunately, there isnt really a property settlement calculator – you do need to seek advice.
When deciding how the assets will be divided the Court will also consider each person’s ‘future needs’. This includes:
- future obligations;
- financial situation and
- the cost of caring for any children from the relationship.
It is essential that any property settlement agreement is documented and finalised correctly.
How is a property settlement documented?
A property settlement agreed between the parties can by documented (by law) through either of the following options:
- By including the agreement in orders which are made by the Court with the consent of both parties (Consent Orders); or
- By incorporating the agreement in a Financial Agreement, which deals with property settlement and which does not require the approval of the Court to be binding on both parties.
Can I still apply for a property settlement even if everything is in my former partner’s name?
Yes, when identifying all relevant property to be considered in a property settlement it is irrelevant whether the property is owned in joint names or owned by one party only. There may also be relevant property owned by trusts, companies, partnerships or other corporate entities.
What if my former partner wants to sell property but I don’t?
If the property is held jointly in your and your spouse’s name then both of you need to agree to its sale or how else to deal with the property. However, the Court does have the power to order that property be sold if it determines a sale is necessary.
If my spouse acquires property following our separation, am I entitled to any of it?
The relevant pool of property is the property that the parties hold jointly, individually or with another person, or that is held by a trust, company, partnership etc. at the time of the parties reaching agreement or when the Court decides the matter. If your spouse acquires property after separation, that property may be included in the pool of property for consideration. However, the contribution of that post-separation property may be viewed as a contribution solely by them. Therefore, an adjustment may be made in their favour in the overall property settlement between you.
What happens if my partner moves out of the property and stops paying their share of the mortgage?
If your spouse is named on the mortgage for the property then they continue to be liable to pay the mortgage. This is regardless of whether or not they are living in the property. They will stop being liable when their name is removed from the mortgage which may be part of the property settlement agreed on between yourselves.
Most separated spouses reach agreement about the continued payment of these expenses until final agreement on severing their financial relationship can be reached.
If your spouse refuses to contribute to these expenses please seek family law advice from a specialist as soon as possible.
Are domestic tasks considered a contribution for the purposes of a property settlement?
Yes. In assessing the contributions each party has made to the acquisition, conservation and improvement of the pool of property, the financial, non-financial and family welfare contributions such as homemaker and parent contributions made by each party are considered, as are the timing and significance of those contributions. Each contribution will not be considered on its own but will be balanced up against the whole set of circumstances to reach an outcome or agreement.
