The terms ‘divorce’ and ‘property settlement’ are often mistakenly used interchangeably. They in fact signify two very different concepts, with each having its own distinct process in family law matters. Although these concepts are extremely different to one another, they are both almost always extremely detrimental and confusing to the parties involved. If you find yourself facing a divorce or a property settlement case, it’s always best to contact a team of divorce lawyers to help you.
If you are married or in a de facto relationship and your marriage or relationship breaks down, you will need to make decisions regarding the property from the marriage or relationship. This is what is meant by the term ‘property settlement’. The Family Law Act 1975 regulates the division of property from a marriage or a de facto relationship.
A property settlement can be completed by agreement or following judicial intervention. Depending on the complexity of a matter, the matter may be dealt with in the Family Court of Australia, the Federal Circuit Court of Australia or in a Local Court.
If parties reach agreement relating to dividing their property, they can file an application for consent orders. If the application is accepted and the agreed financial Orders are made, they are binding and enforceable.
If parties are unable to reach agreement as to a property settlement, one party will likely file an application seeking financial orders in a Court having jurisdiction. Parties continue to have the opportunity to negotiate their property settlement despite an application being filed with a Court. If parties cannot reach agreement, then a Court will decide how the property from the marriage or de facto relationship is divided after hearing evidence and applying the following method:
1. Identify and value the assets, liabilities and financial resources;
2. Assess the parties’ contributions;
3. Assess the future needs of each party; and
4. Ensure the division of the property is just and equitable.
An Application for Divorce is entirely separate to an application for financial Orders except for the fact that once a Divorce Order is made and takes effect you will have twelve months to finalise the division of the property from the marriage, or commence proceedings to finalise the division of the property from the marriage. You cannot file an Application for Divorce until you have been separated for twelve months.
It is important to note that divorce proceedings do not finalise any arrangements regarding property or parenting matters. An Application for Divorce can be filed solely or jointly, and, if both parties agree, may not require you to attend Court. You will be required to attend the divorce hearing if you are the applicant and there are children of the marriage under the age of 18 and you have not retained a lawyer.
If your husband or wife files an Application for Divorce and you disagree with any information contained in the application or wish to have the application dismissed, you can file a Response to Divorce. You may be required to attend the divorce hearing if you file a Response to Divorce depending on the information that is not agreed. If your divorce application is granted it will be finalised and take effect one month and one day after being granted.