property settlement is not automatic to divorce.
parties are required to participate in a family dispute resolution before they can file an application with the court for property settlement.
Parties must enter into an agreement or file a court application to settle property issues. Divorce is for the sole purpose of terminating the bonds of marriage. This fact dispenses with the myth that divorce settles the property and financial arrangements of the parties.
This myth can actually cause a lot of problem for parties who are not more informed of the law because the law sets a deadline for filing applications for property settlement. Believing in this greatest myth about divorce could lead to the lapse of the period within which a party must file an action for property settlement.
The Family Law Act 1975 provides that an application for property settlement must be filed within 12 months from the time that the divorce became final.
A divorce becomes final once the court grants a divorce order. This means that the right to file an application for property settlement is readily available to a party but when the application is filed beyond the 12 months period, it is up to the court whether to allow it or not. The admission of the late application will be pretty much left to the discretion of the court.
Since there is no automatic property settlement upon divorce, parties have to initiate an action either by entering into an agreement with the other party or by filing a court case. It is considered best for parties to agree on how to divide their properties. An agreement would save on costs and time of having to go to court. The parties will be able to decide and control the division of their properties as compared to having the issue resolved by the court.
Once an agreement has been reached, the parties can make it binding and enforceable by applying for consent orders. It is the court that will issue the consent order but there will no longer be a hearing wherein the parties have to present evidence. In issuing the consent orders, the court will stick mainly to the agreement submitted unless it is manifestly inequitable to a party.
The court will not immediately entertain a property settlement application if a certificate from a family dispute resolution practitioner is not attached. Regardless of the outcome of the dispute resolution, the certification from the practitioner must be attached to the property settlement application. In deciding a property settlement for the parties, the court will be following a four-step process that entails identification of the assets and liabilities, contributions of the parties to the net asset pool, taking consideration of the parties’ needs and coming up with a property settlement that is just and equitable.
Once a party even starts to think about divorce, he must anticipate that division of properties will follow. Property settlement can be dealt with in separate proceedings once a divorce order is issued by the court. Thus, it is important to seek legal advice not only about the divorce but the effects of it on the properties of the parties.
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.