Property settlement in a divorce is not something that should be treated lightly. Separating after a marriage or a divorce can be a daunting experience. To avoid additional stress at such a difficult time, some people make the mistake of not formalising how assets are to be divided. This can lead to a situation where, some years after you have re-built your life and moved on, you receive a nasty shock when your ex-partner or ex-spouse suddenly seeks for a formal property settlement to occur.
Property Settlement In A Divorce
There are two ways to finalise a division of assets after a separation:
- To seek an Order from the Court (either via litigation or by consent); and
- To enter into a Financial Agreement.
Pursuant to the Family Law Act, a person has one year after their divorce has been granted to make a direct Application to the Court for a property settlement. In relation to de-facto couples, the time limit is 24 months after the date of separation. This however in no way means that people are ‘safe’ from a property application being made after these dates. Unfortunately, many people fall into the trap of believing that this is the case.
There are two instances where one can still seek a property settlement after the above time frames have lapsed. A person will be successful in making an application to have their property matters heard ‘out of time’ if the court finds that a party or a child of the relationship will suffer hardship if the property application is not heard.
Another way that property matters can be heard ‘out of time’ is if a person makes an application to the court about children’s matters (eg: ‘custody’ arrangements – where children are to live and what time they should spend with the other parent). If one person makes an application about children’s arrangements, this automatically provides the other party with an opportunity to bring up property issues, even if the parties separated many years ago.
There have been instances where a court has heard property applications 26 years after a couple have divorced.
Family Law Attorneys
For ease of mind and certainty in moving forward, couples who have separated should strongly consider formalising the division of their assets. This is where our divorce lawyers in Melbourne can help. They can ensure proper settlement of any property disputes during your divorce or separation and can remove the risk of these situations happening to you.
Make sure that your new start is truly a new start and that you aren’t drawn back into the problems of your marriage years later, by getting advice from our family law lawyers today.
Call us on (03) 9658 7700 today to book an appointment.