We are often asked whether a client needs to be divorced before a Property Settlement is sorted out. The answer is no.
You must be separated for a minimum of 12 months before you can apply for divorce or 2 years if you have been married for less than 2 years and have not attended counselling. You can however negotiate or apply for a property settlement at any time after separation has occurred. Most clients have Orders in place distributing their property long before they apply for divorce.
Do I need to go to Court?
Most people are able to negotiate a property settlement and have a legally binding Court Order made without having to set foot inside a Court. Of course, if agreement cannot be reached, you can commence Court proceedings. At Marriott Oliver we have the technical expertise and experience to effectively negotiate and draft Consent Orders, or alternatively represent you in contested proceedings in Court.
You do need to apply to the Court to be divorced. Most applications are not opposed. An application can even be made jointly with your former partner. If there are no children under the age of 18 at the time the application is being determined, then most people don’t even need to attend Court to have the divorce processed.
Time Limits – What you need to know
There are time limits that apply to applications for property settlement. If you are in a de facto relationship you must apply to the Court within 2 years of separation. If you are married you must apply within 12 months of your divorce becoming final. Extensions of time can be granted to these limitation periods in some circumstances. This means that if you do not have final property Orders or a legally binding agreement in place then you risk an application being made at some later time. A handshake deal is not legally binding.
There may be benefits available to you, other than finality, in having a handshake deal translated into legally binding Court Orders. These include exemptions from the payment of stamp duty, CGT rollover relief and the ability to divide superannuation.
Family Law is a highly specialised area of law. It is important to get the right advice from a specialist family lawyer. Our dedicated Family Law Team is available to provide you with that advice.