Property settlement after a divorce or separation is often a complex and emotional process. Many liabilities and assets are acquired over the course of a relationship, which need to be divided equitably if the relationship breaks down. Below are a few things to consider before taking the next steps toward a property settlement.
Although divorce rates are declining – from 2.6 divorces per 1,000 people in 2000 to 1.9 per 1,000 people in 2020, according to the Australian Bureau of Statistics – it’s still a very real and common occurrence for many Australian relationships.
‘Property of the relationship’ is a key phrase during the division of property. This refers to anything you and your partner own – including the family home, investment properties, cars, furniture, technology, crockery, and personal items such as jewellery. It doesn’t matter if these items are in one or both of your names, if they exist during the settlement process, they are considered ‘property of the relationship’.
You will also have to consider the assets you or your former partner control, like businesses, superannuation or property held in a family trust. Property settlements also include any debt or liabilities, such as mortgages and credit cards. In certain circumstances, assets held in your name before the relationship or acquired after your separation may be included in the settlement.
The time limit on property settlement after separation
If you were married and intend to divorce, you can begin negotiations about property as soon the relationship has broken down. However, you will still need to be separated for at least 12 months before filing for a divorce.
There is a strict time limit to reach a property settlement agreement after a divorce – 12 months. De facto relationships must reach a property settlement within two years after the date of their separation.
Decide on living arrangements
Agreeing on living agreements before working toward a property settlement is a vital step – as one person will usually have 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, if you have kids. 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 the 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 are 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
The most cost effective and efficient way 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 outlines how everything will be divided.
Not only will negotiating this agreement together minimise the cost of lawyers and take up less time, but it will also make you feel like you are part of the decision-making process. Ideally, it will also lessen the emotional toll placed on you, your children, and your extended family, whilst giving you a sense of closure.
Property settlement after divorce or separation can be negotiated with your partner using FDR – specialised mediation that guides discussions and settles disputes. During this process, together you will identify the things included in your property pool, discuss their division, and reach a formal agreement.
At this stage, it is 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 cannot be reached, lawyers will need to be involved.
The property settlement process can be frustrating and overwhelming, but you are not alone – legal and financial advice, as well as support services like counselling and mediation, are available at every step along the way.
A quick note on wills
It is a little-known fact that if you are married, a divorce can automatically render your existing will invalid. However, a marital or de facto separation does not automatically revoke a will. Therefore, any will that is valid at the time of separation will continue to be valid until legal proceedings are finalised, so your property may still pass to your former partner if you die.
Where wills are concerned, it’s best to obtain legal advice, as the laws around them are slightly different in each state and territory.
Support on property settlement negotiations after divorce
For a detailed guide and worksheets to help you work through your property settlement during a divorce or separation, download our free ‘A Fair Share’ eBook.