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The Factors that Affect Property Settlement After Separation

The Factors that Affect Property Settlement After Separation

Wed, 6th Feb 2019

When contemplating the path to separation and beyond, there are so many aspects that are draining and overwhelming, not to mention emotional and extremely stressful. Dividing property is often a key focus for couples facing separation, and there are many factors that need to be considered when embarking on this process.

The first thing that needs to be established is what there is to be divided – known as the asset pool. The ‘asset pool’ may include property, cash, shares, superannuation, businesses, family trusts; essentially an asset or financial resource in any form.

The way the asset pool will be divided between you will depend on the individual circumstances of your family. Each couple’s settlement is different, dependent upon your unique situation.  As a guide, as lawyers, we look at:

●  The direct financial contributions made by each party to the marriage or de facto relationship, such as wage and salary earnings;

●  Indirect financial contributions by each party such as gifts and inheritances from families;

●  The non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and;

●  Future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.

Your property distribution can be settled by mutual agreement, but if this is not possible, you can go to Court to ask for a decision from a judge.

If your property settlement does requires litigation, you should be aware that a Court will not be able to make a final decision immediately. There may be numerous Court hearings before a final decision can be made. A court will still encourage the parties to attempt to reach an agreement and may require the parties to attend conferences to discuss resolution of the matter.

Property proceedings will take into account past contributions made by each party, including acquisition, conservation and improvement of property, as well as the welfare of the family. Maintenance proceedings will deal with the prospective future needs and requirements of the parties – so there is a clear relationship between property and maintenance provisions.

Overall, the Courts seek to make orders that are just and equitable for all.

A few other issues that parties should be aware of include:

●  Strict time limits in relation to making property applications:

(a)  In the case of divorced parties, property proceedings must be commenced within 12 months of the divorce becoming absolute

(b)  In the case of de facto relationships, proceedings must be commenced within 2 years of separation.

●  For de facto relationships, particularly where there are no children involved, the Court must be satisfied that there was in fact a de facto relationship first and foremost, and that relationship must be of at least two years’ duration.

●  There are formal requirements in relation to financial disclosure – failure to fully disclose information may lead to the Court making an order for costs against a party who deliberately tries to withhold financial information. 

●  Assets acquired by the parties after separation may also be taken into account in property proceedings.

In a time of immense stress and pressure, it is a good idea to have someone on your side who has a clear view of the bigger picture and can ensure you are steered towards the best possible outcome for you and your future.

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