Unlike some overseas jurisdictions the simple fact of being married does not give you an entitlement to share in your spouse’s property if you separate.
How courts determine property settlements is governed by the Family Law Act 1975, in particular sections 79 and 75(2).
That legislation directs that before making a property settlement order, the court must be satisfied that it is “just and equitable” (fair) to alter the property interests existing at that time. In most cases where a couple has jointly owned property this first requirement will met however, particularly in short relationships where assets have not been combined the situation is not as clear.
If you ask a court how your property should be divided it will almost invariably following these steps:
- First the court will ask for evidence from you to establish the value of all assets belonging to both parties (including superannuation) and the extent of all liabilities;
- Next it will assess the various contributions made by each of you during your marriage to your property and as a homemaker and parent;
- Then the court considers the impact of other factors such as age, health, ongoing care of children and the difference between your respective incomes.
Time Limits
- Time limits apply to bringing an application for a property settlement. That application must be commenced within one year of the date upon which your divorce becomes final. That time limit can only be extended in very limited circumstances.
- There is no need for you to divorce before you can make an application to the court for a property settlement. You can do so as soon as you separate. However, once your divorce becomes final, you will need to keep the one year time limit in mind because not filing within the prescribed time might mean that you are denied the property settlement to which you might otherwise be entitled.
There is no substitute for specialised family law advice so if you have questions about separation or want to know your legal position please feel free to book a confidential appointment. We can assist you at all stages of the process, regardless of the path taken. Our lawyers provide advice based on the relevant facts and the individual needs of each client. No two cases or outcomes will be the same.
For answers to frequently asked questions about property division please go to our FAQ page.