Property settlement can be filed before the divorce or after the divorce
Property settlement which is usually executed by marrying couples, married couples and divorcing couples is an agreement that states how the parties will divide their properties when they separate. This should not be confused with the word divorce which is a dissolution of marriage.
Property settlement can be filed before the divorce or after the divorce, while the latter can only be filed after the marriage and does not include de facto relationship. Property settlement can also be executed by parties to a marriage that has been declared void by the court. It is required that at least one party to property settlement is an Australian citizen or resident.
To apply for divorce, the separating couple has 12 months after the date they parted ways. Within this prescribed period, which is also known as “cooling off” period, the divorcing couples can already resolve the issue on the division of their properties by filing property settlement application in court or within them.
If during the 12 month period the couple did not apply for property settlement and their divorce paper was later filed in court and if there was a decree of divorce issued, they have only 12 months to settle their property or submit spousal maintenance if the same was not included in the divorce proceedings. There are few instances that the court permits the filing of the application for property settlement beyond the 12 month period after the issuance of the decree of divorce.
In resolving the application for property settlement, the court will consider the following: the assets of the couples, liabilities of each party and their financial resources.
After determining the financial capabilities of the parties as well as their assets, the court will then perform the two-step process:
- Identification of the respective contributions of the parties (both financial and non-financial aspect) and allocation of percentage division in the total property
- Consider matters under section 75(2) and section 79 (4) of the Family Law Act and identify the adjustment that should be done in connection thereof on the percentage division of the total property.
The court may also issue an order in connection with section 79 of the Family Law Act such as alteration of the property interest of one of the couples. In case one of the couples is bankrupt, the court may order altering the interest of the bankruptcy trustee in the vested property interest. If there is a child to the marriage, the court may also issue an order requiring either parent or both or the bankruptcy trustee to make settlement or transfer of property for the benefit of the child.
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.