You don’t need to wait until you divorce to divide your property. In fact, there are many reasons why it can be best to separate your finances as quickly as possible after separation and not wait until divorce. If you don’t separate your finances, one spouse in a marriage can start Court proceedings at any time before a divorce is finalised and up to 12 months after a divorce is finalised.
If a spouse wishes the Court to intervene more than 12 months after a divorce is finalised, that person will need to make a special application to the Court out of time. It will then be up to the Judge to decide whether it is fair for the matter to go ahead in Court out of time.
Aside from the time limit after divorce, an actual divorce really has no other impact on property division. Sometimes what is written in a divorce application can impact however. Your marriage date often has no impact on property division either.
The Judge, in making a decision how to divide property, must look at how long two people have been intermingling their funds. Often people live together before marriage and this often means that contributions to the marriage begin some years before the actual marriage date.
While your actual marriage or divorce date is likely not to be important to property division, your separation date must be seriously considered by the Judge because it marks the end of shared finances (even though you may still have joint assets and liabilities). Sometimes two people can have very different ideas about what constituted their separation date and this also then becomes a decision that the Judge must make on evidence heard and tested in the witness stand.
Once the length of the marriage – or more accurately – length of intermingling finances to the date of separation is determined, the Judge then must look at contributions age, health, earning capacity and with whom the children live.
If you have been in a defacto relationship and you separate, it is best to separate your finances as quickly as possible. It is critical that you formally identify your separation date as soon as possible also. If there is disagreement about your separation date, Certus Lawyers can make an interim or procedural application for you to have that fact determined by a Judge in the meantime.
Sometimes a person does not even agree that they were in a defacto relationship at all. This would mean that the Family Law Judge cannot assist you in Court under the Family Law Act 1975. If you are in a difficult situation where one person in a relationship does or does not believe there was a defacto relationship, Certus Lawyers can assist with an interim or procedural application to have the Judge determine this fact before the Court is asked to adjust a person’s assets.
In the case where there is no dispute that there was a defacto relationship and no dispute about the length of the relationship or separation date, the Judge decides property in exactly the same way as if the parties had a legal marriage. That is, the Judge will focus on the length of time the parties contributed to each other’s financial situation, what was contributed and other factors such as age, health, earning capacity and with whom the children live.
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