Property settlement in plain English
With divorce comes property settlement, the two go hand-in-hand. This procedure is stereotyped as a long, bitter feud between the parties over money, furniture, and other assets. But it doesn’t need to be this way.
What’s a property settlement?
A settlement occurs after a couple separates and begins divorce proceedings. Assets like properties, bank accounts, cars, and the like come under scrutiny. A settlement is possible without court involvement if the former partners can come to an agreement. To make the agreement legally binding, the family lawyer can put in an application for a court order.
How is property divided?
Property settlement and issues surrounding it fall under the Family Law Act. If there’s a dispute and it proceeds to court the following steps are taken:
- Identifying and valuing all property from the marriage/partnership
- Identifying and valuing the contributions each person has made to the property through income, homemaking, inheritances, etc.
- Factors about each party are considered. This includes their level of personal responsibility, their ability to look after others (particularly children), their ability to earn, their age and state of health
- A ruling is made
The idea that property is divided equally between former partners is a myth, one that your family lawyer will quickly dispel. As stated above, how much of the property settlement a party is entitled to depends on their overall contribution during the marriage and other factors post-divorce.
Is it possible to settle without involving the courts?
Your family lawyer will encourage it. If mediation is a possibility it’s the better option to take. Property settlement is easier when both sides, though separated, still have a good relationship. Issues like child custody, and deciding who gets the home and inheritances settle faster through mediation. Going through the courts takes time and money.
What if we weren’t married?
De facto partnerships, including same-sex partnerships, still fall under the Family Law Act after amendments were made in 2009. Former couples can apply for consent orders and spousal maintenance like any married couple. You must apply for consent orders and adjustments a year after the divorce was final (two years for de facto relationships).
My partner is trying to sell the house/other assets. What do I do?
Get legal advice and apply for an injunction immediately. This stops any sale in its tracks. If it’s too late to stop the sale, your lawyer can at least apply for the money to be ‘frozen’ until the settlement is final.
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