When parties to a marriage or de facto relationship have separated, or are contemplating separating, one of the most commonly asked questions is “how will our property be divided?” Whilst each case is unique, there is a process with different stages which Family Lawyers work through in assessing the entitlements of separating couples. It is the same four step process that is adopted by the Court, however, if parties are able to agree upon how their property is to be divided, then there is no need for parties to attend Court.
At Doolan Callaghan Family Lawyers, we do our utmost to resolve property matters for our clients and achieve excellent outcomes without the need to resort to litigation.
In our experience, most people do not wish to attend Court but rather wish to achieve a good result by having their matter resolved through mediation or negotiation.
There is no need to be divorced before reaching a property settlement, however, once a Divorce Order is made, parties only have a period of twelve months to reach a property settlement or to make an Application to the Court for property Orders. Otherwise, if twelve months has lapsed since a Divorce Order was made, they must seek permission of the Court.
It is usually much easier to resolve the division of property soon after separation, as if a Court is called upon to determine the dispute, they will take into account what assets are owned by both parties at the date they are dealing with the issue – even if years have passed since the parties separated.
Property can include the following:
- Real estate (such as your home or an investment property)
- A business, or interest in a Company operating a business
- Funds in the Bank
- An interest in a Trust or deceased Estate
- Motor vehicles
- Furniture, jewellery etc.
Often clients are concerned that whilst they may have an interest in property acquired during the relationship or owned by the other person prior to the commencement of co-habitation, the property is not in their name. This by itself does not mean someone does not have an entitlement, however, in such a case it may be important that you seek early legal advice so as to protect your interest in the property or asset.
Determining what is a fair and just division of property can be a complicated process and it is important to obtain legal advice so as you ensure that you are aware of your entitlements and you achieve a just result.