Dealing with financial issues and property after separation

Whether you are married or in a de facto relationship, you will need to address financial issues if you separate. If you are married, you generally cannot apply for a divorce until you have been separated for one year. While you wait for that to happen, you need to decide how to handle your property.

It’s best to sort out financial issues before you separate. If one party is leaving and the other is staying in a residence that was shared, you should try to agree about the property that the party who is leaving will take.

If you have joint bank accounts, you should each open a separate bank account. If you can, agree how to divide the funds in the joint accounts before transferring money to the new accounts.

Should a Family Law Court become involved?

If you can make an agreement about financial issues, court involvement is not required. There may be circumstances, however, under which you will want to have the court enter financial orders.

If you come to an agreement that requires one party to do something in the future — sell a home or pay support, for example — it is best to protect yourself by making that agreement enforceable. One way to do that is to have the court include the agreement in a consent order. Courts will usually grant a consent order if the terms are reasonable.

If you cannot reach an agreement, you may need to ask the court to resolve the dispute by entering a financial order. Before you can do that, you will probably need to comply with court rules that require you to make a good faith effort to settle your differences. Mediation is usually a part of that process. You can and should obtain legal advice before you decide whether to apply for a financial order.

Can a Family Law Court make a financial order if my de facto relationship breaks down?

You can apply for a financial order after a separation even if you are not married to the other party, but only if you meet one of the following criteria:

• you were in a de facto relationship for at least 2 years;
• you have a child with your partner in the de facto relationship;
• the relationship is or was registered; or
• the court decides that one party made significant contributions to the relationship and the failure to issue an order would result in a serious injustice.

You will also need to satisfy the court that the de facto relationship was genuine.

When can I apply for a financial order?

If you are married, you can apply for a financial order at any time during your separation. After your divorce becomes final, you must usually apply for a financial order within 12 months.

If you were in a de facto relationship, you can generally apply for a financial order within 2 years after the relationship breaks down. You may need to seek legal advice if you and your partner cannot agree on the date the relationship ended.

How does a court make a financial order?

Family Law Courts use a 4-step test to determine a property settlement. The steps are:

• Define the property pool. The court will assign a value to all assets and debts.
• Determine the contribution made by each party. The court considers both financial and nonfinancial contributions to the relationship.
• Assess the future needs of each party. Age, health, and earning ability are among the factors a court considers when it decides whether a party will probably need financial assistance in the future.

Decide upon a just and equitable property settlement.

The result of the 4-step process is never certain. Two different judges might make two different property settlements based on the same facts. It is usually best to keep control of the outcome by negotiating your own property settlement rather than leaving your fate in the hands of a judge who does not know you.

Can we divide superannuation interests?

Australian law regards superannuation as an asset that can be valued and divided. Special procedures apply to splitting superannuation. You can best protect your interests by obtaining legal advice before you decide how to split superannuation interests.