Can You Get Divorced Without a Property Settlement?

When couples separate, one of the most common questions is whether they can get divorced without finalising a property settlement. The short answer is yes—you can legally end your marriage without having divided your assets. However, there are important legal and practical considerations to be aware of if you choose this path.

Divorce and Property Settlement: Two Separate Processes

A divorce is simply the legal dissolution of a marriage. It is a declaration by the Court that the marriage has irretrievably broken down, usually after a period of at least 12 months’ separation. A property settlement, on the other hand, is the process of dividing assets, liabilities, and financial resources between separating parties. These two processes are entirely separate under Australian family law.

You do not need to wait until you are divorced to start negotiating or formalising your property settlement. In fact, you can begin dividing property as soon as you separate. Conversely, you can apply for a divorce without having finalised your property settlement.

What Happens If You Divorce Without a Property Settlement?

While it is legally possible to get divorced without a property settlement, there are significant risks in delaying the division of assets:

• Time Limits Apply: Once your divorce becomes final, you have only 12 months to apply to the Court for property orders or to formalise your agreement through Consent Orders or a Binding Financial Agreement. If you miss this deadline, you will need special permission from the Court to make a claim, which is not always granted.
• Changing Financial Circumstances: If you delay your property settlement, any assets or debts acquired by either party after separation but before settlement may be included in the asset pool for division. This means that if one party accumulates wealth or incurs debt post-separation, it could affect the eventual outcome.
• Risk of Future Claims: Without a legally binding property settlement, your financial ties remain intact. This leaves open the possibility that your former spouse could make a claim against your assets in the future—even many years after separation—unless the time limit has expired and no leave is granted by the Court.

Why You Should Formalise Your Property Settlement

Many couples reach informal agreements about dividing their property and move on. However, unless this agreement is formalised through Consent Orders or a Binding Financial Agreement, it is not legally binding. This means either party could later seek a different division of assets, potentially leading to costly and stressful disputes.

A formal property settlement provides certainty and finality. It severs financial ties and protects both parties from future claims. It also ensures that any tax implications or stamp duty exemptions are properly addressed.

Practical Tips

• Don’t Wait for Divorce: You can and should start negotiating your property settlement as soon as possible after separation. There is no need to wait until you are eligible for divorce.
• Seek Legal Advice Early: Early advice can help you understand your rights and obligations, and avoid costly mistakes.
• Formalise Your Agreement: Use Consent Orders or a Binding Financial Agreement to make your settlement legally binding and protect yourself from future claims.

While you can get divorced without a property settlement, it is rarely advisable to leave financial matters unresolved. Delaying your property settlement can expose you to unnecessary risk and uncertainty. For peace of mind and financial security, it is best to resolve and formalise your property division as soon as possible after separation.

If you are considering divorce or have recently separated, consult with our experienced Family Law Solicitors to ensure your interests are protected and your future is secure. Contact our Sutherland Shire Family Law Team on 8525 2700, click here to request an appointment, or simply click on the Book Now button below. Our experienced Family Law Solicitors include Riccarda Stock, Nicole Quirk, Shweta Kumar, and Nikita Ward.

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