PUBLISHED NOVEMBER 2019
How do we settle our property?
The same laws about property apply whether or not you were married, or in a de facto relationship (whether with a partner of the opposite sex or the same sex). You can start negotiations about property as soon as the marriage or relationship has broken down.
If you get divorced you must start property or spouse maintenance proceedings within 12 months of your divorce becoming final. If you have been in a de facto relationship, you must commence property or maintenance proceedings within two years of your separation.
De facto Relationships
If you are in a de facto relationship you can make an application for a property settlement under the Family Law Act if any one or more if the following conditions apply:
– your de facto relationship lasted for at least 2 years;
– you have a child with your de facto partner; and/or
– you have made a substantial contribution to the property or finances of your partner.
We are now separated. How do we divide our assets?
Property includes all things owned by either one or both partners (in joint or sole names) including:
– cash and investments;
– real estate as well as personal property (e.g. cars, furniture);
– property owned before the marriage;
– gifts, inheritances, lottery wins received by one partner or spouse;
– redundancy payouts.
What about Superannuaton?
Superannuation will be relevant to any property settlement. It can be treated as property and can be split between married or de facto couples after they separate. How superannuation entitlements will be split depends on a variety of matters, including the type of superannuation scheme to which that person belongs. You should consult a lawyer if superannuation is an issue in your matter.
How does the Court divide our property?
There is no formula or rule that determines how the property will be divided. The Court is not required to split the property 50/50. It will consider many things, including,
– Property owned before the marriage or relationship: The extent to which this is considered the property of an individual partner will depend on the length of the marriage or relationship and what contributions the other partner made (if any) towards the accumulation and upkeep of property.
– Contributions made by both partners during the marriage or relationship: This includes direct contributions (e.g. wage earnings, maintaining assets and property), indirect contributions (e.g. gifts, assistance from family members), non-financial contributions, do-it-yourself home renovations and contributions made to the welfare of the family as a caregiver or homemaker.
– Future needs (e.g. whether one partner will be supporting a child, the age and health of each partner and their ability to obtain employment and earn income).
Generally, contributions to the welfare of the family would be considered to be just as important as the contribution of the primary wage earner.
It is a good idea to get a lawyer for your property settlement even if only for legal advice and help making consent orders. Otherwise, even if you have settled up in accordance with an informal agreement, there is nothing to stop the other party taking you to court to get more. If you have court orders, you will be exempt from paying stamp duty on many property transfers.
The advice in this article is general in nature and you should consult your solicitor for specific advice