Do I need to be divorced to split the property?
No. As soon as you have separated you can make arrangements to split your property and debts between you and your former partner. If you are married, you do not need to wait until you are divorced.
Do we need to go to Court?
No, not at all. If you have already agreed on how your property should be divided between the two of you, your lawyer can draw up the documents that are required and these documents can be provided to the court for approval – you and your former partner don’t need to go to court. The court can make orders by consent without you needing to go anywhere near the court provided that the orders sought are “just and equitable”.
What if we can’t agree?
In most cases, you should firstly participate in some sort of dispute resolution, frequently mediation.
Secondly, if that doesn’t resolve matters, you should write to the other party and let them know what you want and explore options for settlement.
Thirdly, you must comply with the duty of disclosure.
In some cases it may be too urgent or otherwise inappropriate to complete some or all of these steps before you approach the court for help.
If you need to commence court proceedings this must be done within 12 months of a divorce becoming final or within 2 years of separation for de facto couples, or you will need to obtain the court’s leave.
By filing an application you are asking the court to make a decision that will be binding on both of you.
How does the court decide?
Firstly the court will work out what the net asset pool is taking into account things like real estate, shares, cars, jewellery, savings, furniture and liabilities. Under property law, this includes things you brought into the relationship, those acquired during the relationship and also those acquired after separation.
Next the court will weigh up the contributions made by each party, including financial contributions, non-financial contributions and contributions as homemaker and parent.
Then the court will look at the future needs of both parties, including factors such as your capacity to earn an income and your parental responsibilities.
Lastly the court will make a decision based on what is just and equitable considering all of the circumstances.
Contact our office in Mount Lawley for help with your property settlement
Dealing with the complexities of a property settlement can be stressful. We can help guide you through the process and help you reach agreement via negotiations and if necessary mediation. If contested court proceedings are unavoidable we can help you survive the process.
Contact us to discuss your situation and to make an appointment.