How long do we to wait until we can settle property?
There is no set time you should wait before you begin making arrangements for your property. You can begin dealing with this as soon as you separate. In fact, the sooner your property matters are formalised the better. The Court has a limitation period to commence proceedings for property matters of 1 year from the date of divorce becoming final for married couples. Otherwise, 2 years from the date of separation for de facto relationships.
If you are married, you should not make an Application for Divorce until your property matters are finalised. This is so that you can prioritise getting the best outcome at settlement, rather than trying to meet a deadline. It is possible to make an Application to the Court after your limitation period has expired. However, it is very difficult and you should not rely upon that option.
When you finalise your property settlement, all assets and liabilities of both parties are considered. This includes those obtained after separation. Likewise, any assets of the relationship that are no longer owned by either party (for example, if you or your former partner spent significant amounts of money) would no longer form part of the property pool. It is therefore best to secure a settlement as soon as possible following separation.
My ex and I weren’t married, can we still do a property settlement?
The first step in a property settlement is to work out what all of the property is, and the value of each item. If you and your ex are able to agree on values, there are no issue with those values being used by the Court.
If you can’t agree, you will need to appoint a registered valuer together to independently conduct a valuation. This is then used by the Court. If you don’t agree with the outcome of that valuation, it is difficult to say a different value should be used. You should obtain legal advice regarding what to do if you do not agree.
All of the property is in my former partner’s name. What rights do I have?
It does not matter whose name property is in when coming to a property settlement. To determine the settlement, the Court will: Ascertain the assets and liabilities that form the property pool – this includes all property owned by both parties no matter which party owns the property.
- Consider the contributions each party made – this includes both financial and non-financial contributions.
- Consider the future needs of the parties.
- Consider whether, having regard to the above, the proposed distribution of property is fair.
Even if you do not legally own any of the property, it will be included in the property pool, and distributed in accordance with this process.