When you begin a relationship, you and your partner both start off with property in your respective names and during the relationship you’ll likely continue to acquire assets independently of each other or in joint names.
If the relationship ends in a short period of time, often you and your partner can go your separate ways without needing to adjust your respective property interests. However, if you get married, have a child together or are in a relationship for more than two years you may need to come to an agreement about how your property is divided between the two of you when you separate.
Once you separate you’ll need to separate your property so, in a financial sense, you can go on with your lives independently of the other.
Property has a wide ranging definition in a family law context, it is more than just your car, house and superannuation. Property can include having an interest in a business or a partnership, shares, investments or even items of personal property that have a substantial value. Further, it can also include having an interest in a Trust.
All of your debts are also included in any settlement. Your debts can include any liability in your name or a liability which you are responsible for. i.e. personal loans, credit cards, mortgages or loans to a business (including a business which you own or have an interest in).
All of your assets, liabilities, superannuation and financial resources need to be disclosed to your former partner. Equally, your former partner must also disclose the same to you.
If you and your former partner reach an agreement, you can file an Application for Consent Orders in the Family Court of Australia or enter into a Financial Agreement under the Family Law Act.
However, if either you or your former partner fail to disclose something, then any agreement reached may be set aside in the future whether the agreement is in a Court Order or a Financial Agreement.
If you and your former partner are not able to reach an agreement between yourselves and reach a resolution to adjust your property interests, a family lawyer can help you do so. This may be in the form of engaging in dispute resolution services, attending mediation or utilising collaborative law or as a last resort you can file proceedings for a property settlement in the Family Court of Australia or the Federal Circuit Court.
If you were married, there is a time limit of 12 months from the date of divorce, during which you are able to commence proceedings in either above court.
If you were in a de facto relationship, there is a time limit of 2 years from the date your relationship ended, during which you are able to commence proceedings in either above court.
If you’re outside these time limits then the court may grant permission for you to file your proceedings for a property settlement but the court will have to decide whether it is appropriate to do so and may not do so in every circumstance.
If you have any questions about the above, please contact our solicitors for advice about how we can assist you in your property settlement.
Declan Williams is a solicitor in our Sydney Office.