Family Law Q&As

Divorce and Property settlement

Clients will often ask us “What is the difference between a Divorce and a Property Settlement?” and “Do I have to wait any period of time before I do my property settlement?”

“What is the difference between a Divorce and a Property settlement?”
A Divorce is a declaration by the Court that a Marriage has irretrievably broken down and that there are no prospects of the parties’ reconciling. To be able to apply for an Application for Divorce, parties need to have been separated for a period of 12 months. If parties have been living together, separate and apart under the one roof, during the 12-month period, then the parties need to file an Affidavit proving that they were living separately under the one roof.

A Divorce affects a parties’ marital status. It also affects their Will and revokes any part of a Will that relates to their spouse, unless the Will was done in contemplation of the Divorce. A Divorce also sets a time limit in that parties have 12 months from the date of the Divorce becoming final to make any Application for a Property Settlement and/or spousal maintenance.

A Property Settlement is different to a Divorce and it describes the practical mechanism used by the parties to end their financial affairs and to divide their assets between them. With a Property Settlement, parties do not need to wait any period of time to resolve their financial affairs or to make an Application for a Property Settlement. The simple requirement is that the parties are separated.

This means that parties can have a Property Settlement without actually being divorced.

A Property Settlement can take various forms, whether it be by way of a Court Order or a Binding Financial Agreement or a simple agreement between the parties that is not actually legally binding. It is always better for parties to resolve their Property Settlement and have their agreement finalised in a document that is legally binding.

“Do I have to wait any period of time before I do my Property Settlement?”
No, as set out above. The simple requirement is that you are separated.

“When is it a good time to get Divorced?”
Clients will often ask whether it is a good time to apply for their Divorce. The answer to the question is different depending upon the circumstances of the parties’ case. We often suggest to clients that they should focus on their Property Settlement first because it will assist the parties to have practical arrangements for their financial situation moving forward.

Once their Property Settlement has been finalised, we then suggest they should consider making an Application for Divorce.

We usually suggest that the Application for Divorce be made after the Property Settlement because many clients will often have an emotional reaction to a Divorce because it is often the final severance of the parties’ relationship. We have been involved in matters where we are close to resolving a property dispute and the negotiations have fallen apart because a party has responded emotionally to be served with a Divorce.

There may be circumstances to justify why a client should make an Application for Divorce sooner, rather than later. Those circumstances may include the following:

• If one party is not accepting of the final separation;
• If a party wants to re-marry;
• If one of the parties wants to protect assets that they are about to receive in the future;
• If one of the parties is on a higher income than the other, there are advantages of filing a divorce sooner as it may prevent the other party from making an application for spousal maintenance if they do not file within the allocated time limit;
• If one party is deliberately delaying property settlement discussions, then it has the benefit of prompting the other party to act.

Should we do a Joint Divorce?
Another question people often ask is “Should we jointly apply for a Divorce?” It has been a common practice, particularly in amicable situations, that one party would ask the other party “Can we do a Divorce jointly?”

It is a preferred option to file a joint Divorce, as it is much quicker and it is often less emotional. It is less emotional because you are asking the other person if they want to apply for the Divorce with you, rather than being on the receiving end of Divorce Papers. It does not require any court appearances. The parties can also pay half of the legal fees for preparing the Divorce and half the filing fee costs. The court date is listed on an earlier date, and often a month or two away, as opposed to the applications filed by a sole party, when the court date may be 3 or 4 months away.

Both parties need to sign the Divorce Application and you do not need to engage a process server to serve the other party with the Application as you are both jointly applying.

It is a more amicable way to file for your Divorce but, of course, everyone’s circumstances are different, and it may not be appropriate to jointly file.

We hope that this article assists in improving your understanding of the differences of a Divorce and a Property Settlement and some of the practical consequences and/or implications you should bear in mind when contemplating a Divorce or Property Settlement.

Are you in the process of going through a divorce and property settlement? Do you have questions about the process? Call Solari and Stock Miranda on 8525 2700 or click here to request an appointment.

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