A new year is traditionally a time for fresh starts. And for some of us, this could include reflecting on our personal lives and deciding to call time on a separation that’s been limping along, unresolved, for some time.
But while divorcing or separating can be a long and emotionally stressful process, it’s important not to delay taking the final, legal steps. That’s because unresolved matters stemming from separation or divorce can become an issue later down the track – particularly when it comes to the property settlement.
You can get your property settlement under way now!
Contrary to popular belief, a divorce and a property settlement are two different legal processes.
As such, married couples don’t have to wait for their divorce to come through before formalising the division of assets.
You can do it as soon as you first separate.
But keep an eye on the calendar
Sometimes, priority action is required, to preserve legal rights.
De Facto Couples
For de facto couples, time limits apply after your separation that can prohibit you from making an application to the court for property orders – applications for financial orders (property settlement spousal maintenance) must be initiated within 24 months after the date of final separation from your de facto relationship.
Beyond that, you are out of time, and can only pursue financial claims with the permission of the Court.
Married Couples
For couples who were married, and have now divorced, there is a time limit too – any application to the Court for orders about financial matters must be commenced within 12 months after the day on which your Divorce Order was operative. Again, proceeding ‘out of time’ is only possible if authorised by the Court.
So, if you’ve separated from a de facto relationship, or divorced, but have not yet advanced a resolution of financial issues, now is the time to bring those issues onto the ‘to do’ list! Make sure you don’t delay, and exceed these important time limits.
Other reasons to get it done promptly
The property pool which is adjusted between partners to marriages and de facto relationships is not assessed at the date of separation.
Rather, the court looks at the value of the assets and/or liabilities that exist at the time of the hearing. This means that if assets grow in value, or other items of property come into existence (e.g. an inheritance or gift from a relative, or a windfall such as a lottery win), they can be included in the asset pool for division, or be relevant to the property settlement in other ways.
For many, the possibility of these things will mean that they want to finalise claims sooner rather than later.
Change your approach
If you have, to this point, been bogged down in getting a final result about the division of property, perhaps its time for a change.
If you’ve being trying to do things yourself, see an experienced family lawyer to get some help – they might be able to take over negotiations for you, or coach you about what to do next.
Also talk to your family lawyer about other settlement options – is your case suitable for a mediation, or will an arbitration drive towards a conclusion? There are many alternative dispute resolution options to break out of the ‘to and fro’, and drive to a final result.
Ultimately, don’t keep doing what you have been doing if it has not worked for you – to get a different result, a different approach will be necessary.
Make it binding
Once you have a deal about the financial stuff – whether arising from negotiation, a mediation, or an arbitration – get your experienced, specialist family lawyer to document it in an Order made by consent, or a Financial Agreement.
That way it will (unlike informal deals) be binding and enforceable, and represent a legal ‘line in the sand’.
The remaining ‘paperwork’ – when can you apply for a divorce?
After you’ve got your financial settlement locked down, the remaining aspect is (for married couples) often the Application for Divorce.
This is the administrative dissolution of your marriage, so that you are no longer married (and free to re-marry).
Australia has a ‘no-fault’ divorce system.
This means there is no requirement to provide a reason why your marriage has broken down.
Instead, under the Family Law Act, the only ground for divorce is the irretrievable breakdown of a marriage. This is proved by 12 months separation with no likelihood of reconciliation.
Often this step can be woven into, and done at the same time as, the documents which record the financial settlement.
Keep at it
Completing all of the above can be hard, and it is easy to put it off. But if you want 2022 to be the year that it is over and done with, keep at it!
Give yourself deadlines for the various tasks, so that you keep moving in the right direction.
We Can Help
Going through a divorce or separation is never easy. At BGM Family Lawyers we believe a problem shared is a problem halved.
As a Specialist Family Law Firm on the Gold Coast, we’ve helped people from all walks of life through family law situations – and we can help you too.
Get in touch by emailing info.bgm@bgm.legal or calling 1300 246 529.
