Property and Financial Orders
Are there time limits?
It would usually not be advisable to rush into applying for a Divorce as soon as you have been separated for the required period of time. Property Settlement proceedings are required to be commenced within twelve months from the date of divorce.
Finalising Property Settlement
It is always advisable to seek legal advice from a Family Lawyer.
The Family Law Act 1975 requires parties, whether married or de facto to end their financial relationship formally by way of Consent Orders or a Binding Financial Agreement.
Formally ending the relationship between the parties prevents either of them from making any property claim against the other in the future. All forms of written agreement to finalise property settlement must also contain a full list of all of the assets, including superannuation and liabilities and the agreed values of each of those items.
Finalising Property Settlement is a 5 step process –
- Is it just and equitable to make a property settlement;
- Property pool;
- Contributions (financial and non-financial);
- Future needs (Section 75(2) or 90SF(3) factors);
- After considering steps 1 to 4 above, is it just and equitable to make a property settlement?
How do you determine who owns what after separation?
It is not relevant whose name the property is in. If the property was bought when you both were together it is still considered jointly owned.
This is also the same for mortgages and debts that accrued during the relationship.
All assets are included in the property pool including homes, cars, boats, bank accounts, shares, superannuation and all debts.
Can I be paid Spousal Maintenance?
In order to obtain spousal maintenance it is either agreed between the parties or ordered by a Court.
Both parties will need to fill out a financial statement indicating all income and expenses. The party seeking maintenance must show a need and that expenses outweigh any income. The other party must also have the ability to pay the shortfall.
What is Financial Disclosure?
In family law matters when couples are dividing property, the Family Law Rules stipulate that each party must disclose to the other values of assets and debts.
This not only includes property such as furniture, cars, art and the like. It also includes trusts (whether trustee or beneficiary), shares, managed funds, all financial resources, real estate, whole or part ownership of a business, superannuation, tax liabilities and any property that has been disposed of in the 12 months prior to separation.
You will be required to provide copies of bank and credit card statements for the previous 12 months and copies of tax returns for the previous 3 years. For the former matrimonial home, market appraisals by 3 real estate agents is a good way to start and formal valuation is only required if the parties cannot agree on a value. It is advisable to start collecting documents as soon as possible after separation.
What are my future financial needs?
There are several factors that solicitors and a Court take into account when determining your needs going into the future. It depends on factors such as incomes of both parties, who has the majority care of the children, health and age of both of you. These are but a few on the list. These factors are considered along with your financial contributions to the asset pool.