separating couples can file an application in court for the settlement of their properties
separating couples who are parties to marriages, de fact relationships or same sex relationships can file an application in court for the settlement of their properties. the family law act sets out the process in dividing the property of the separating couples.
All the properties of the parties, both tangible and intangible are considered in their net matrimonial assets which are to be divided between them. Property acquired prior to the marriage or relationship, during the relationship and after the relationship are taken into consideration, except if there is a Binding Financial Agreement executed by the parties which will determine how their properties are to be divided.
There are four steps involved in process of property settlement and these are:
- Calculation of the matrimonial properties of the parties
- Determination of the respective contributions of the parties
- Determine whether adjustment is proper after taking into consideration the future circumstances of each of the party
- Division of the assets according to justifiable and equitable circumstances
Parties to a marriage may file an application in court for property settlement within 12 months from the date of the decree of divorce. They can also file the same during their marriage or file within 12 months from date of separation prior to filing of divorce case. If the application was filed beyond the 12 month prescribed period (after issuance of divorce decree) leave of court to file the same is required.
Parties in de facto relationships on the other hand can also file application for property settlement during or prior to the commencement of their relationship. But the 12 month period after the decree of divorce was issued will not apply to them as there was no marriage to annul or set aside. There are certain conditions that they must satisfy under the Family Law Act, and these are:
- They must have been living as husband and wife
- They had a child
- They had contributed significantly to the properties of the other party.
If the application failed under the Family Law Act, de facto couples can still make a claim under the Property Law Act 1974 if they are constituents in Queensland.
If they enter into a binding financial agreement, this will govern the division of their property. Usually, couples execute this agreement if they wanted to protect their property from the other spouse. This is also resorted to in order to protect the inheritance of the children from the previous marriages. Parties can terminate this agreement in writing or the court may set it aside if there was fraud or the same is unenforceable or void.
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.