Divorce property settlement top ten most frequently asked questions

 

How would the property be divided between spouses?

A marriage or de facto is like any co-owned business. In the absence of an agreement to split the assets equally share-and-share-alike, the assets will be divided depending upon the contributions of the parties.

The court will consider what properties the parties brought into the marriage, how the parties contributed other properties during the existence of the marriage, how parties used the properties of the marriage to acquire more properties and the personal needs for medical maintenance of the parties upon the termination of the marriage.

The settlement of properties upon divorce will be decided on a case by case basis.

When can I apply to the court for property settlement?

In cases divorce, you have one year from the finality of the divorce decree within which to petition the court to settle the property of the marriage. In cases for de facto relationships, you are given twenty-four months from the date that the de facto partners separated. The date of separation is a matter of proof. You must be able to present evidence of the time that you physically separated from your de facto partner in order for the court to decide if your petition was filed in time.

If you file a petition for property settlement twelve months after the finality of the divorce decree, or beyond two years after you actually separate, you must convince the court that you had a good reason for the delay in filing the petition for property settlement.

What are my options if all the properties are in my husband’s name?

When you say that all the properties are in your husband’s name, must be referring to real properties which have a registry of ownership, or bank accounts which require an account holder’s name.

Usually, there is a rebuttable presumption that the registered owner of the property is its sole owner. If the property was purchased during your marriage, the property should be registered as ‘ X married to Y’. This puts any person on notice that the registered owner, and thus, the property may be co-owned by reason of marriage.

If the property is registered in just the name of one spouse, there is a presumption that the property was purchased by the personal funds of the spouse in whose name it is registered.

However, if the funds used to purchase the property came from the common funds of the marriage or when the property was purchased and used for the benefit of the family, even if it is registered in the name of only one of the spouses, the Court will hear evidence on why the property should or should not be included in the asset pool of the marriage.

I bought a flat while our marriage properties were still being settled and my husband wants to include the flat in the asset pool of the marriage, what should I do?

You must always ask advice before making any purchases of high value such as real estate – condos and flats are real estates. If the flat was purchased while the property settlement case was still pending and you used funds which are contested or funds which form part of the common asset pool of the marriage, then the property is a ‘fruit’ of the properties of the marriage and must be included in the settlement. You can keep the flat but its value or the earnest price you have already paid for it will be deducted from your share.

If the flat was purchased with personal income from employment, professional work or a personal business venture which was started and earned after the marriage was dissolved but prior to the properties being settled, then you must prove that it is properly excluded from the settlement.

In both these circumstances, since you seek the exemption of the flat, you must present proof why it should be excluded from the common asset pool of the marriage. He who alleges proves. Get an experienced divorce lawyer to help you prove your case.

My husband and I are at odds – I want to keep the house but he wants to sell it. What can we do?

If the property is registered jointly in both your names and the property is already subject matter of a property settlement case, then the sale or disposition of the property will have to be with notice and approval of the court. If the property is registered solely in your name or that of your husband’s and you are both contesting its exclusion into the common asset pool of the marriage, you must take care that it is not sold or mortgaged surreptitiously or fraudulently.

Unfortunately, scorned lovers can give you a lot of grief. Some spouses try to cheat the other of their rightful share in the property or hide properties from the other spouse or the creditors of the marriage. You need a good divorce lawyer who can sniff out properties your husband and apply for an order of the court to freeze those properties so that your spouse cannot sell it without authority from the court.

If you want to keep the house from sentimental reasons, you can always make a ‘trade-off’ you get the house and he can get some other property he values highly (golf clubs, club membership, season tickets, shares in a corporation, etc.). Think of the property settlement as a business transaction where value must be parted for value.

Can my husband and I just settle the marital property between ourselves?

Yes and no. If the properties are all in the name of your spouse, you will need to protect your rights to those properties. If you seek spousal maintenance or support due to an illness or disability, it would be best to have a divorce lawyer on your side. If you seek the exclusion of a particular property from the common asset pool (your great grandmother’s diamond necklace, for example), better have a lawyer. If you seek a particular property of the marriage to be adjudicated to you in the settlement, then you definitely need an astute divorce lawyer.

If you and your ex-spouse are reasonably and amicably seeking to settle the properties of the marriage with minimum fuss so that you can move on, then you can write up an agreement before a conciliator or mediator to settle the properties. The court will still ask for a certification from a lawyer that the agreement and its legal implications have been duly explained to you. This is an out of court settlement and is highly encouraged by courts because it frees up the court’s time and reduces legal costs.

The lawyer I consulted guaranteed me a fixed percentage in the settlement – is this possible?

No lawyer whose feet are firmly planted on the ground can guarantee how any court litigation will be decided – least of all, a property settlement. There are so many variables and so many competing interests. You and your husband are not the only parties to a property settlement. Your children are parties to it and they are entitled to receive a share in the property for their support. More importantly, your creditors have an interest in the properties which cannot be ignored.

A good and ethical divorce lawyer will refrain from guaranteeing that you will obtain a fixed percentage in the settlement. Instead, he will present to you possible strategies and possible outcomes that you can explore. He will also honestly evaluate the strength of your evidence. A credible lawyer should present scenarios. He should not make guarantees – after all, it is the judge who will decide, not the lawyer – he cannot possibly predict how a judge will make up his mind, he can only tell you what the law says.

My husband and I agree on property settlement already, do we need to apply for orders from the court to finally settle the properties of our marriage?

Not necessarily. If the marriage properties have a small value and the parties have agreed upon a settlement, applying for orders from the court will reduce the value of the estate because legal fees and court costs will be deducted from the marital estate. You may still file a petition for property settlement but opt instead for conciliation or mediation. When you agree at that stage, your property settlement will be reviewed and approved by the court.

The court-approved settlement agreement can be used to transact with banks and other financial institutions to transfer funds or to change the registration of the properties. If the parties disagree on property settlement issues and even after court-mandated conciliation or mediation the parties still cannot agree, litigation will ensue, and the parties will have to await the decision of the court as to how the properties will be divided between the parties. An order will be issued by the court to settle and divide the properties with finality.

We were still paying for a mortgage on our house when we divorced since I want to keep the house, will I pay the mortgage all by myself?

It depends. If your small school-aged children live with you, it will probably be in the best interest of the children for you to keep the house. What you have paid for in the past and what you will pay for the house in the future may be the subject of an agreement between you and your spouse. The support he gives for each child can include shouldering a portion of the future mortgage payments.

Usually, the courts try to ‘balance’ the settlement. All the properties of the marriage are appraised for their value. So the courts will try to make sure that the value of the house which one spouse gets in the settlement will be balanced out by the value of the other properties in the marriage.

If you wish to seek for your partner to shoulder all the mortgage payments from his share of the settlement, you must have convincing reasons and evidence for this--you also need an astute divorce lawyer to help you prepare and present your arguments.

Property settlement frequently asked questions

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Author

Alan Weiss

15th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.