After Separation – What To Do & When To Do It

When relationships break down – whether they be marriage or de facto – there are specific timeframes that apply in relation to the finalisation of financial and property matters. It is important to be aware of these timeframes, and the methods available to finalise such matters, to ensure that you aren’t precluded from enforcing rights that you would otherwise have. This blog will provide a short summary of the relevant timeframes and methods.

In the case of a marriage, section 44 of the Family Law Act 1975 (Cth) (Act) requires parties to a marriage to commence court proceedings within 12 months of the date upon which their divorce order took effect. You can, of course, finalise the matter without the assistance of the court if an agreement can be reached (discussed further below) but, if the court’s intervention is required, this timeframe must be complied with. If a party wants to commence court proceedings after the 12 month period has expired, they are allowed to seek leave from the court to do so but leave will not be granted unless the court is satisfied that hardship would be caused to one of the parties or a child of the marriage.

In the case of a de facto relationship, section 44 makes similar time restrictions but the parties to the relationship have 2 years from the date of separation. This makes sense given that married parties must wait 12 months from the date of separation before they can apply for a divorce order (12 months plus 12 months equals 2 years). Again, leave may be granted to commence court proceedings out of time if hardship would be caused.

The obvious issue that arises in relation to marriages, in particular, is that the timeframe only applies after a divorce order is made. If you never apply for a divorce order, the clock never starts ticking. This is why we recommend to all clients that they formally finalise their financial and property matters shortly after separation. We have seen, first hand, instances where clients have been served with court documents by their former spouse many years after they have separated and moved on with their lives and applied their own money and property to their own ventures which will then potentially be made available to satisfy their former spouse’s claim.

There are two options for finalising a property settlement. The first option is orders made by the court. This can either be by consent between the parties, if they can reach an agreement, or by a decision of the judge following a final hearing (with the former clearly being a much cheaper alternative than the latter). The second option is a financial agreement made in accordance with the requirements set out in the Act. If the requirements are not satisfied, the agreement will not be binding. One of the most important requirements is that each party receive independent legal advice and a certificate completed by the relevant solicitors be attached to the agreement.

To determine which option which will be best for you and also get an idea of what sort of division of the assets and liabilities of the relationship is appropriate, we recommend that you contact us to obtain some initial advice – within the abovementioned timeframes – that will hopefully assist you in reaching an amicable agreement with your former spouse.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.



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