Divorce / Separation and Property

Divorce and Property

Deciding to take the step to separate from your husband or wife can be one of the most difficult decisions you make in your married life.

Certus Family Lawyers understand the complexities that you may face once you have separated from your spouse. It is important at this stage to look to the future and determine what you and your children need to move on both financially and by putting in place a strong mechanism to ensure that you have access to your children.

Many couples are able to navigate the separation process in a facilitative manner and come to joint decisions regarding how they would like their property to be divided and how they will care for their children now that they are no longer living together. Coming to an agreement with your ex-partner often ensures that you can separate as quickly and painlessly as possible and keeps your legal fees down.

We are focussed on providing you with expert advice in relation to any proposed agreement that you reach and can draft consent orders or financial agreements which will ensure that your agreement is binding and enforceable.

At Certus Family Lawyers, we are strong proponents of the collaborative approach, however we also understand that there are often times where you are unable to come to an agreement with your ex-spouse or where you would prefer to have a professional advocate for your rights in relation to your children or your finances. We will fight to ensure that you obtain the best possible outcome in your situation so that you can move forward knowing you are in safe hands.

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.

Our Family Lawyers are available to provide you with specific advice tailored to your personal needs. If you are considering separating from your spouse or have recently separated, call 07 3106 3016 so we can begin assisting you to move on.

Defacto Separation and Property

Certus Family Lawyers recognise that deciding to bring your de facto relationship to an end and separate is just as difficult and emotionally charged as ending a marriage and should be treated with the same level of respect and attention to detail as a marriage.

De facto separation can be a complex process in Australia. Certus Family Lawyers are here to guide you through the process, provide you with legal advice in relation to your rights under the legislation and ensure that you obtain a just and equitable settlement so that you can move forward with confidence.

The Family Law Act of Australia provides that when a de facto relationship breaks down the parties can enter into consent orders to divide the assets of the relationship or where the parties are unable to come to an agreement as to how they should divide their financial assets, either party may apply to the Family Court or Federal Circuit Court to have a judge order that your property be divided according to your needs and contributions.

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.

 

Same Sex Defacto

The Family Law Act does not make a distinction between couples in same sex de facto relationships and couples in opposite sex de facto relationships. Certus Family Lawyers recognise that deciding to bring your de facto relationship to an end and separate is just as difficult and emotionally charged as ending a marriage and should be treated with the same level of respect and attention to detail as a marriage.

Defacto separation can be a complex process in Australia. Certus Family Lawyers are here to guide you through the process, provide you with legal advice in relation to your rights under the legislation and ensure that you obtain a just and equitable settlement so that you can move forward with confidence.

The Family Law Act of Australia provides that when a defacto relationship breaks down the parties can enter into consent orders to divide the assets of the relationship or where the parties are unable to come to an agreement as to how they should divide their financial assets, either party may apply to the Family Court or Federal Circuit Court to have a judge order that your property be divided according to your needs and contributions.

What determines a defacto relationship?

Section 4AA defines a defacto relationship as being:

Where a couple that are not married separate the court may need to determine if the relationship meets the criteria to be a defacto relationship. Each relationship is unique and will influence the likelihood that your relationship will be viewed by the court as a defacto relationship.

Generally, the following factors are given more weight by a court when making this decision:

It is important to note that the Family Law Act states that after you separate you only have two years to apply to the court for a financial settlement. It can be extremely difficult to request that a court consider your application after the two-year period has expired.

If you are unsure if your relationship would meet the definition of a defacto relationship or if you have any questions regarding your rights to a property settlement upon separating from your defacto partner we recommend speaking to our experts on 07 3106 3016 for a confidential and obligation free conversation about your particular circumstances and get the right advice for your relationship. Certus Family Lawyers can help you resolve your matter quickly and in a cost-effective manner so that you can obtain the desired outcome.

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