When dividing up property during a divorce or separation, there’s a lot to think about. Below are a few things to consider before taking the next steps.
Over the course of a relationship, couples acquire liabilities and assets, from real estate and furniture, to cars and clothes. While we mightn’t think too much about ownership when we’re together, working out who gets what when a marriage or de facto relationship ends can be a challenging and sometimes heartbreaking process – but an essential one.
Firstly, it’s good to know what ‘property of the relationship’ actually means. Essentially, these are the things you own, or ‘assets’. These can be held by you and your former partner in joint or separate names. They can include the family home, cars, boats, household effects such as furniture, technology and crockery, and personal items such as jewellery.
You’ll also have to consider the assets you control, as well as the ones your former partner does. These could be a business, superannuation or property held in a family trust. Then there are the things you both owe money on, or ‘liabilities, such as mortgages and credit cards. Sometimes you’ll also have to discuss property held in your name before you got together, or acquired after your separation.
If you were married and intend to divorce, you can begin negotiations about property as soon the relationship has broken down. You’ll still need to be separated for at least 12 months before filing for a divorce.
Decide on living arrangements
One vital step you need to take before working on a property agreement is sorting out new living arrangements, as someone will most likely need to move out of the family home. There are no set rules when it comes to making this decision, but it should be guided by:
- Who your children’s primary caregiver will be. They should stay in the home to minimise disruption to the children.
- Individual financial circumstances. If one party earns more than the other for example, they may be better financially positioned to pay for a temporary rental property.
That said, many couples finalise property agreements while still living together. If making a decision is proving problematic, it’s best to seek Family Dispute Resolution (FDR) or even legal advice from Legal Aid NSW or LawAccess NSW. If you’re the one leaving the home, consider taking photos of furniture and making copies of important documents, as future property access may be limited.
Negotiating a property agreement
One of the best ways to finalise a settlement concerning the cash, assets and liabilities gained during a relationship, is by negotiating a mutually acceptable property agreement – a document that sets out how you and your former partner will divide up your property.
Negotiating this agreement together may help minimise the cost of lawyers, take up less time, and make you feel like you’re part of the decision making process. Ideally, it will also lessen the emotional toll placed on you, your children and your extended family, and give you a sense of closure.
A property agreement can be negotiated with your partner using Family Dispute Resolution (FDR) – a process that helps guide discussions and settle disputes. This will see you identify the things included in your property pool, discuss their division, and reach a formal agreement.
At this stage, if required, it’s wise to get advice from lawyers or financial planners, and to keep track of all your property until a final settlement is agreed upon. If an agreement can’t be reached, lawyers will need to be involved.
Frustrating and overwhelming as these negotiations may be, remember that you’re not alone in this process. Legal and financial advice, as well as support services like counselling and mediation, are available along the way.
A quick note on wills
Many people don’t realise that if you’re married, a divorce can automatically render your existing will invalid. Separation however, does not automatically revoke a will, whether you are married or in a de facto relationship. Therefore any will that is valid at the time of separation will continue to be valid after that date, and so any property you have left to your former partner may pass to them if you died.
This is an area where it’s best to obtain legal advice, as the laws around Wills can be slightly different in each state of Australia as well.
For more support on property settlement negotiations after divorce
For a detailed guide and worksheets to help you work through your property settlement during divorce or separation, download our free ‘A Fair Share’ eBook.
You can call Relationships Australia NSW on 1300 364 277 for more information about our Family Dispute Resolution services. We also have a number of Family Relationship Centres, which provide services to assist with parenting, financial and property matters for people who are separating or separated.