Property settlement involves the parties agreeing or the court making orders which divide the parties' assets between them.
Whilst parties have to wait 12 months from the time that they separate until they can apply for their divorce, they can resolve property matters between them or make an application to the court in relation to property settlement immediately following their separation. Indeed, they can even apply before separation.
However, a divorce does have an effect on whether you can make a property settlement application to the Family Court if you have not already resolved those matters. Once a party has applied for a divorce and a decree absolute dissolving the marriage has been made, then the parties only have 12 months from that time to make an application for property settlement and/or spousal maintenance. While it may be possible in very limited circumstances to obtain the court's permission to file an application for property settlement and/or spousal maintenance after the time period has expired, this is extremely difficult and expensive and it is far better simply to file your application within the necessary time period.
The Family Law Act applies to the property of people who have been married. If you have never been married to the other party, then the law in relation to your property is the law of the State in which you reside or where the property is situated. In that case, you should refer to the relevant de facto information and kit.
The Family Court has broad powers to make orders changing the interests parties have in property.
To apply to the Family Court to resolve any matters in relation to property, it is necessary that either party to the marriage at the time that the documents are filed is an Australian citizen, is ordinarily resident in Australia, or is present in Australia.
"Property" means the property to which a party to a marriage is entitled whether in "possession" (which means entitled to it now) or "reversion" (which means entitled to it at some later time).
There have on occasions been disputes as to what is included in the definition of property and if you have any queries about that, then you may want to obtain legal advice.
The court is required to only make an order changing property interests if it is satisfied that in all the circumstances it is fair to do so. Section 79(4) of the Family Law Act 1975 details the matters to be taken into account by the court in considering whether any orders should be made altering property interests. Those matters are:
1. The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them.
2. The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them.
3. The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
4. The effect of any proposed order upon the earning capacity of either party to the marriage.
5. The matters referred to in subsection 75(2) so far as they are relevant (see below).
6. Any other order made under this Act affecting a party to the marriage or a child of the marriage.
7. Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide or might be liable to provide in the future, for a child of the marriage.
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