It is extremely important that you are aware that there is a 12 month time limit in relation to a division of property or liabilities between parties to a marriage – that is, a person in the marriagemust commence legal proceedings in a Court or finalised a divisin of property by consent with their ex partner and have that agreement legally formalized within 12 months of the date of divorce.
If you have been in a de facto or same sex relationship it is extremely important to be aware that there is a 24 month time limit in relation to a division of property between de facto or same sex partners– that is, a person in the relationship, must either commence legal proceedings in a Court, or finalise a division of property by consent with their ex partner and have that agreement legally formalized within 24 months of the date of separation.
If proceedings are not commenced within the time (or an agreement is not reached and legally formalized) the, subject to some limited exceptions, you will lose your right to make a claim through the Court for property division.
If you wish to make a claim after the expiration of the permitted time you will incur considerably more expense in explaining to the Court why you did not make your claim and there is no guarantee your application will be successful.
Subject to some very unusual circumstances, all parties in a matrimonial case whether, concerning children or property, will bear their own costs.
The Four Step Process
Property settlement after divorce or separation will follow the following legislated four step process. The court however, has a very wide discretion and how that discretion will be exercised depends on a number of factors including any persistent or extreme behaviours of one or both of the parties, especially when the behaviour of one of the parties has had a significantly negative financial impact on the other.
The first of four steps the Court will take is to ascertain the assets and liabilities of both parties. The net asset pool is the total value of all the assets owned by either or both parties minus their liabilities.
The net asset pool includes anything acquired before or during the marriage, as well as after separation by both parties collectively or separately. In ascertaining the net asset pool, any financial resources, even though they are not strictly property, over which a party has influence, control or prospective entitlements will be taken into account. Superannuation is also considered part of the asset pool.
Accurate valuation of assets requires that many factors are taken into consideration, such as eg capital gains tax and stamp duty.
Secondly, the contributions from both parties will be assessed. Contributions include:
1. non-financial contributions, for example, as a homemaker or primary carer of children.
2. financial contributions including assets acquired before and during the marriage, assets acquired since separation and also gifts, bonuses
Thirdly the future needs of both parties will be assessed. Many factors are taken into account when deciding the future needs of both parties. These include:
1. Age and health
2. Capacity to earn
4. New relationships (and new financial circumstances)
5. Future parenting responsibilities (care and support)
Finally, the Court will consider the practical effect of the proposed property settlement, and whether ïn all the circumstances”” it is “just and equitable” to both parties.