When should I start thinking about a property settlement?
After a separation decisions will be needed to be made to deal with your home and other assets of the marriage or relationship, especially how to deal with paying mortgages or other bills to ensure no financial problems arise for either of you in the short term whilst you negotiate a final settlement.
Sorting out your property settlement is best done reasonably soon after separation, so that both parties can make important decisions about for example re-housing themselves. It’s also better if you tackle this before new properties, liabilities or increased superannuation is obtained by either party as these assets and resources, even though acquired after the separation, will still need to be dealt with in the final settlement.
You should get legal advice about your possible entitlements as soon as possible, and particularly if you are aware of any urgent issues e.g mortgage arrears or a tax liability falling due, as it remains both parties responsibility to preserve the assets of the marriage or relationship until a settlement can be reached.
With the help of a lawyer negotiating on their behalf, or if necessary using a mediation service, many of our clients can reach agreements so that finalising a settlement can be done swiftly.
If you cannot reach a settlement by agreement, you may need to file an application to the Federal Circuit and Family Court for property orders. There are no time limitations for making an application to the Court for a property settlement and/or spousal maintenance if you are still legally married.
However, if you get a legal divorce, you must initiate court proceedings for property settlement and/or spousal maintenance within 12 months from the date the Divorce order came into effect. For example, if your Divorce Order is dated 1 January 2022, it comes into effect on 1 February 2022 and you have until 1 February 2023 to initiate court proceedings.
If you were in a de facto relationship, you must make an application to the Court for a property settlement and/or spousal maintenance within two (2) years from the date of final separation. For example, if final separation occurred on 1 January 2022, you have until 1 February 2024 to initiate court proceedings.
If you do not initiate court proceedings for property settlement and/or spousal maintenance within the limitation period, you will need to seek leave (permission) of the Court before you can proceed with your application. This can be costly and the Courts have a wide discretion about giving parties leave to proceed out of time.
Its always better to seek advice about these things sooner rather than later, even if time limits have not even commenced, so we can make sure you don’t lose any of your rights.
Contact us today if you have recently separated or are contemplating separation so we can make sure you are protected.
