The first thing you need to know is that divorce and a division of matrimonial property are two separate events:
- A divorce is the legal termination of a marriage. You can apply for a divorce after you have been separated from your spouse for a minimum period of twelve months – however, it is possible to continue to live ‘separated under one roof’ during that time. People who have lived together in a de facto relationship for a total period of two years or who have been married can enter into a division of their joint property immediately after they separate.
A division of property can happen in various ways:
- Under a Binding Financial Agreement (often called a ‘pre-nup’) – both parties need separate lawyers, or
- By way of Consent Orders – these are made by the Family Court but there is no need for anyone to attend at the Court as the documents setting out the proposed agreement are simply forwarded to the Court for its consideration, or
- Via an Application to a Court for the Court to decide the matter – this is a last resort and only used when the parties cannot agree upon a settlement.
When can I apply for a division of property?
Time limits apply to divisions of matrimonial and de facto property:
- People who have been married and have obtained a divorce order have only a year from the date that the order becomes final to apply to a court for a division of matrimonial property.
- People who have been in a de facto relationship usually have two years from the date of separation to divide joint property in one of the ways described above.
What property can be divided between people who have been in a marriage or de facto relationship?
For both married people and those in a de facto relationship, the property ‘pool’ available for division between them usually consists of:
All assets (joint or separate)
Less all liabilities (joint or separate)
= the net asset pool available for division
As an approximate guide, some of the main assets and liabilities which are taken into account are:
- The parties’ home
- Monies held in the parties’ bank accounts
- Motor vehicles
- The parties’ superannuation (although this is not strictly speaking an ‘asset’)
- Home loans
- Credit cards
- Loans of various types
Each party has to make full and honest disclosure of all assets and liabilities held by him or by her.
How is the property divided between the parties?
Once the net asset pool can be identified, then the entitlement of each party to the pool is calculated. To work out the percentage to be received by each party, the following factors are taken into account:
- The contributions made by each party to that asset pool – these may include financial contributions and non-financial contributions (including contributions made as a home-maker and carer for children).
- ‘Future needs’ factors – the parties’ respective future ability to earn an income, their needs to support any other person, their health and age and the like are considered in this regard.
Finally, a division of property should be ‘equitable’, that is, fair to both parties.