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Divorce and Property Settlement

Divorce and Property Settlement: Which comes first?

What is divorce?

The vast majority of people arrange and document their property settlement before they file for divorce. Divorce is the ending of the marriage and often a much more emotional process. Meanwhile, property settlement is a practical matter. 

Australia is different to the UK and many other countries where divorce and the finalising of property settlement is done simultaneously as one process. Divorce in Australia is the ending of the marriage and is separate from financial settlement. Moreover, divorce, in itself, has no bearing on your property entitlements.

You can make a sole application or a joint application for divorce to the Federal Circuit and Family Court of Australia (FCFCOA).

Court attendance is required if there are children under the age of 18 years. However, if there are no children of the marriage, then court attendance is not required.

How to apply for divorce

Applications for divorce are done electronically in Australia. To apply for divorce, you must complete the online Application for Divorce and pay the filing fee using the Commonwealth Courts Portal.

You will also need to complete the application process online. In addition, you may also be required to file additional documents with your application. If you are making a sole application, you must also serve the application on the respondent.

To apply for divorce in Australia, you must be:

  1. born in Australia or have become an Australian citizen by descent, or be an Australian citizen by grant of Australian citizenship,
  2. lawfully present in Australia and intend to continue living in Australia. You must have been living in Australia for at least the last 12 months, and
  3. separated for 12 months and one (1) day or longer.
a close-up image of a woman holding her wedding ring while waiting for new about her divorce and property settlement application with her seon

What is property settlement?

When people separate, they usually need to sort out how to divide their assets (property) and debts. There are various ways this can be done:

  1. You and your former spouse or de facto partner can agree on how your property should be divided without any court involvement.
  2. Seek to formalise your agreement by applying for consent orders in the FCFCOA if you agree on the terms of your financial settlement or sign a binding separation agreement that sets out those terms.
  3. If you cannot reach an agreement, you can apply to a court for financial orders.  This includes orders relating to the division of property and payment of spouse or de facto partner maintenance.

 

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage or a de facto relationship. If you choose to do a binding separation agreement, the same principles are applied by the advising and certifying lawyers. They are based on:

  1. Working out what you have (assets) and what you owe (liabilities/debt)
  2. Looking at the:
    • direct financial contributions by each party to the marriage or de facto relationship, e.g., such as wage and salary earnings.
    • indirect financial contributions by each party, e.g., gifts and inheritances from families.
    • non-financial contributions to the marriage or de facto relationship, e.g., caring for children and homemaking.
  3. Future requirements – a court will consider things like age, health, financial resources, ability to earn and care of children.

Binding separation agreements:

The binding separation agreement needs to:

  1. Be in writing.
  2. Clearly identify you and the other party.
  3. Express that it is made in contemplation of the irretrievable breakdown of a relationship.
  4. Set out in detail both yours and the other party’s financial positions as a result of the division of assets and liabilities—full disclosure is required.
  5. Set out in detail what you seek to happen to arrive at the proposed division of assets.
  6. Be reviewed by a solicitor advising each party.

Include a certificate from each party’s solicitor annexed to the agreement that the relevant legal advice was provided to that party.

Time limitations set by the legislation and the Courts

When filing for consent orders in the FCFCOA:

  1. If you are a de facto couple – the Courts expect you to have commenced or finalised your property settlement within two (2) years of the formal date of separation. The formal date of separation is usually by agreement between the parties, but should be supportable in writing. Although already separated, many couples still live under the same roof for financial and practical reasons— until financial settlement. Hence, it is particularly important to have written evidence of the actual date of separation.
  2. If you were married and divorced – the Courts expect you to have commenced or finalised your property settlement within one (1) year of the date of your divorce becoming final (decree absolute).
a close-up image of a divorce lawyer explaining property settlement

Need help with your Divorce and Property Settlement?

AussieLegal offers affordable legal kits and paralegal services on family law matters. dress a range of legal matters. This includes assistance with the preparation of Divorce and Consent Orders applications and Binding Separation Agreements (BSA).

Both our Consent Orders and BSA services include advice and certification from experienced family lawyers for both parties. Thus, ensuring your Consent Orders or BSA is fully compliant and enforceable in the Court.

Need more options? Call us on 1300 728 200 to discuss your situation with one of our consultants.

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