Property division and divorce are two separate things in family law – you can do either one, both or neither.
Australia has no-fault divorce. This means that there is no need to show any wrongdoing of either person. The ground for divorce is that the marriage has irretrievably broken down, shown by the parties having been separated for at least 12 months. This means that you’ll have to wait 12 months from your separation date before you can apply for a divorce.
Once the divorce has been granted, the clock then starts ticking and you will have 12 months from the divorce date to have sorted out your property settlement or risk being considered ‘out of time’.
There is no minimum time you have to wait before dividing your assets in a property settlement. I usually advise people to sort out their property settlement as soon as possible after they separate.
There is no presumption that property should be divided 50/50 when a couple separates.
The overarching question the law asks is: what is just and equitable? i.e. what is fair based on your particular circumstances. In considering what is just and equitable in your case, follow the following steps:-
- Assets and liabilities
Identify all of your and your ex-partner’s current assets and liabilities. Assets include the family home, investments, bank accounts, vehicles, business assets, superannuation and the like. Liabilities include the mortgage, personal loans, credit cards, hire purchase debts, taxation liabilities and such. Regardless of whether you or your ex-partner is the registered owner of the asset, it’s all in the mix for the purposes of working out a fair property settlement.
Identify the contributions that each person has made to the growth of the parties’ current assets. Contributions can be both financial and non-financial. Contributions to the welfare of the family are relevant. Contributions made at the start of the relationship are factored in, e.g. one person owned a house at the start and sold it to pay for the deposit on the family home. Contributions during the relationship are also considered, e.g. an inheritance. Sometimes contributions after you have separated are also relevant, e.g. one person has maintained the family home and made all of the mortgage payments.
- Future needs
Consider whether either person has greater future needs based on their age, health, primary care of children, income earning capacity or financial resources. In terms of what the law considers to be “fair”, these factors will often warrant an adjustment of property division to the person who has greater future needs.
Justine Dean – Samford Family Law