Separating from a partner is a difficult and emotional process, whether the relationship was short or you had been living together for many years. It’s made all the more challenging by the assets and debts (property) you’ve both acquired during the course of the relationship.
You’re able to claim property whether you were a married or de facto heterosexual or same-sex couple, but there are time limits that apply. If you miss the cut-off, then claiming property can be incredibly difficult, which is why it’s vital you sort out your property settlement sooner rather than later.
Let’s take a look at exactly what’s involved and how much time you have to get everything sorted.
What is property in the context of a relationship?
You’d be forgiven for thinking that property simply means your house. However, it’s much more than just the family home. Property includes all the assets that you own, such as cash, bank accounts, investments, insurance policies, superannuation, family trusts, inheritances, businesses, vehicles and personal items such as clothing or jewellery.
Property also includes your liabilities, or debts, which might include personal loans, credit cards and car loans as well as larger debts such as a mortgage.
What’s involved in the property settlement process?
First, you need to make a list of all of your assets and liabilities. Then, you’ll need to decide how you would like to split everything. If you and your former partner agree on how to divide your property, you have several options:
- Make an informal property agreement
- Draw up a financial agreement
- Obtain a consent order from the Court
Only the final two options make your agreement legally binding, ensuring that neither of you can make a further property claim from the other down the track. If you want to avoid having to go to court in the future, it’s best to apply for a consent order from the Family Court of Australia, or a Binding Financial Agreement.
No matter which option you choose, getting legal advice from a Melbourne divorce lawyer is recommended, and indeed legal advice is required for financial agreements. A family law expert can provide you with helpful advice and guidance around the process and how to navigate the court proceedings. It can also be a good idea to seek financial advice from a professional financial planner.
How long do you have to claim property after separation?
We recommend that you try to sort out your family law property settlement as soon as possible. You don’t need to wait until you are divorced to apply; in fact, you can even begin to sort things out before separating.
It’s a good idea to start before you apply for a divorce if possible. This is because once your divorce is finalised, you’ll only have 12 months before you must apply to court for property orders. This may sound like a lot, but the time will fly by.
If you were in a de facto relationship, you’ll have two years from the date of your separation to claim property.
What happens if you don’t meet the time frames?
If you do not apply within these time frames, you’ll need to seek permission from the family court to apply for property orders, and this is not always granted.
Don’t underestimate how long it can take to sort everything out. The process of determining everything you own and dividing up property can be lengthy, and made all the more stressful by the grief of a separation or divorce. Even in situations where things are amicable between you and your former partner, the process can still be difficult.
The court also expects that you will have made every effort to resolve matters before filing an application. While not compulsory, attending Family Dispute Resolution can assist with mediation, which again can take time. If you still cannot agree on the division of property, you’ll need to apply to the family court for property adjustment orders.
For expert legal advice from a Melbourne divorce lawyer, get in touch with the team at Testart Family Lawyers.