Family Law Q&A

We have decided to separate. I want to sort out a property division as soon as possible. Do I have to be divorced first?

The simple answer is ‘no’. This is a common misconception amongst the public. Divorce is granted on the basis of the irretrievable breakdown of the marriage which is proven by 12 months separation. Divorce dissolves the legal entity of marriage. However, property division is quite a separate thing. Unlike divorce, parties can commence their negotiations or Court proceedings for the division of their property immediately upon separation.

The more complex issue however, is the timing. The timing can be very important and getting advice early is the key. Sometimes it can be very risky delaying a property settlement.

Irrespective of when people separate, the Court and the lawyers must look at what each party has at the time that the matter goes to Court or when the people approach their solicitor. This may be long after separation and the consequences may be serious.

For example, if one party after separation works hard and increases their wealth or receives an inheritance, but the other party decreases their financial position, then the wealthier one will be at risk of losing part of their property acquired after separation by having to divide this up with their ex. In a recent case that I dealt with this exact problem was highlighted. The wife, lets call her Mrs Brown came to see me. She and her husband had separated many years before but had agreed at that time amicably, that the wife could live in the property until all the children left the home and then at that point the house would be sold and the parties would divide the proceeds of sale of the house equally. However, they did not enter into a formal property settlement. When the wife came to see me it was my obligation to advise her that since separation, as the husband had bought a number of other properties, had remarried and accumulated substantial superannuation and had become quite a wealthy man, and that she was entitled to significantly more than half the house, and she got it.

Time Limits:
Note however, that once a divorce is granted, parties only have 12 months within which to bring a Property Application to the Court or enter Consent Orders. However, if your property division has not been settled within the 12 months then, it may be possible to make an application to the Court for leave, that is, for permission, to start the Court proceedings out of time. This leave may or may not be granted depending on the circumstances of each case.

Also in de facto relationships, a time limit applies for the commencement of proceedings being, within 2 years from the date of separation.

Similar time limits apply to spouse maintenance applications. For married couples, a spouse maintenance claim must be made within 1 year from the date of the divorce; for de facto couples, 2 years from the date of separation. Extensions can be granted under certain circumstances.

So timing is an important issue to consider.

For your Family Law matters contact Solari and Stock on 8525 2700
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