property can be divided between you and your partner via a number of ways.
Firstly it is important to note that this can be done without any court involvement which will save you litigations costs. However and your partner need to have an agreement regarding how the property should be divided.
Secondly you can formalise a pre-nuptial agreement (this is an agreement made before the marriage/ before the partners entering into a relationship which clearly states how property will be distributed if both partners have a divorce). The formalisation of the agreement will be done via the Family Court.
Thirdly, if you are your partner are not on speaking terms you can seek to have financial orders determined by the Family Court. In terms of how a court makes this decision section 79 (4) and 75 (2) under the Family Law Act 1975 outline the decision making process when deciding on financial disputes after a marriage breakdown.
The principles generally remain the same for a marriage or de facto relationship. The following will be taken into account:
- Firstly, the judge will make a note of what you own (assets) and what you owe (liabilities).
- Then the judge will then look at the financial contributions each party has made and is making to the relationship e.g. salary.
- The judge will then focus on the indirect financial contributions by each party e.g. gifts, inheritances.
- If the wife is a housewife, it does not mean that she will receive less than her husband in monetary terms. This is because the judge will look to the non-financial contributions to the relationship e.g. caring for children, looking after the house.
- The future requirements of each partner will also be taken into account e.g. age, health, financial resources, care of children and ability to earn (s75 (2)).
The way in which assets will be shared depends on the individual circumstances of the family.
Property settlement involves the parties agreeing or the court making orders that divide the parties' assets between them. Parties to the marriage or de facto relationship can save processing time instead of waiting 12 months for the ‘separation’ to end then both parties can make an application to the court to resolve any property settlement matters. This can also be done before separation.
If financial matters have not been resolved then the timing of when each party submits a property settlement application will be different. It is important to note that once a party has applied for a divorce then the parties only have 12 months from that time to make an application for property settlement.
Even if there has been an agreement between you and your partner regarding what property will remain with whom, it is still best to seek legal advice to ensure that neither party is disadvantaged. Thus you will be able to better understand your entitlements and be in a a better position to realistically plan for the future.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.