The key differences:

If you can't agree on a deal then you will have to go to court. 

It's no secret that going to Court can take time. So, once you are in the court system, it's generally not the quickest of processes. 

After having your initial court date, you can sometimes wait up to 18 months to two years for a final trial date.

Unfortunately, that time frame is not unusual. 

In saying that, despite the delays associated with the Courts, Court is still a very useful tool to resolve matters, even before they get to a final trial. 

All the time we see people disagree on what assets are included in the property pool and what each asset is worth. When this process begins to become drawn out that's when court can become useful. The Court will make orders to resolve those disputes at an early stage.

If someone is refusing to value something or is refusing to disclose their assets to you then you can use the court to speed up this process. You can issue subpoenas once you are in the Court system so you can find assets that have not been disclosed. The court can make orders for the valuation of certain assets. So, the court can be a very useful tool, and more often than not, it can speed the process up in situations such as these.

How can you speed up the property settlement process?

The best way to speed up a property settlement is for both you and your partner to commit to full disclosure. It is in everyone's best interest to get everything on the table as fast as possible. Unfortunately, people don't always see it that way, but if you can disclose and be open and upfront from the get-go, a lot of matters would be resolved a lot quicker.

If you can get the disclosure and the valuation of assets out of the way as quickly as possible things won't drag out.  

Unfortunately, when people don't agree, won't agree or just don't treat the process with urgency, they can have to start all over again. 

As disclosure is an ongoing process if you allow 12 months to go by with reaching an agreement you may need to do the disclosure and valuation stages all over again. You will likely be in a new financial year so you will have to exchange your bank statements, your tax returns and all of your financials all over again. 

Like we said above, Court can be a useful tool, so do not be afraid to use it. If your former partner isn't willing to disclose or work with you to finalise your property settlement in a timely fashion court can speed the process up.  

Finally, if your assets are simple and do not require valuations, this can obviously be resolved very quickly if all parties agree. Often people come to us in these situations; they may have already sold the matrimonial home, which was their only real asset. There's money in trust from the sale of the property but there's really nothing else to disclose or value. In these situations we can resolve these matters really quickly, even as quickly as a week or two (excluding the time the Court takes to approve any agreement).

Spousal maintenance is a payment from one spouse to another. It can be paid weekly, monthly or in a lump sum. It doesn't have to be periodic payment. 

Who determines how much and when to pay?

Ultimately, the court determines how much spousal maintenance is paid and when it is paid. It is based on the applicant's need and the respondent's capacity.

The court makes this decision by getting both you and your former partner to disclose your income, your weekly expenses as well as all your financial resources and assets. This information is disclosed to the court as well as you and your former partner.

Upon receiving this information the court will compare the difference (see where there is shortfall and surplus) and make a decision based on this assessment.

The main reason is that you must be separated for 12 months before you can even make an application for a divorce. 

You have to be separated for 12 months because the court wants to be certain that there is no chance or reconciliation between you and your former spouse. That there is no chance you will get back together.

After 12 months has passed, the application process is fairly straightforward. You could complete it within a day or two. You then need to either have your former spouse co-sign it, or serve them with the application.

For a step-by-step guide on how to apply for a divorce, download our guide "How To Get A Divorce" below:

Once you have filed your application for divorce, you will then be given a hearing date. The hearing date depends on how busy the Courts are. You might be given a hearing date within the next month, or you may have to wait for 4 or 5 months.

Once you have had your hearing and the divorce is granted, you will still have to wait 1 month and 1 day after the date the divorce order was made before the divorce takes effect. 

Overall the process itself is very quick. It only takes one/ two days to actually complete the application. There could be some delay in serving your spouse if they are not willing to co-sign the application. Unfortunately, unavoidable time limits* and the delays of the court is what draws things out.

* some time limits can be reduced or avoided in some extreme circumstances.

The first step in any legal issue (including this one) is to identify the parties involved. 

In this scenario, you usually have 4 key people:

Bearing in mind that one or both of your parents may have passed away. For example, the money given may have been an inheritance. 

The next step is to determine what the facts are. You need to know the specifics of your situation so you can identify any obstacles that may arise later. 

Common facts you will need to note are:

Step three is simply to confirm what you are trying to achieve. Presumably this will be to keep the money away from you former partner. So you will want to know how you do that and how you keep it out of the property pool.

Next you need to use the information from steps 1 and 2 to help you identify the obstacles that will prevent you from reaching your objective in step 3. 

The main obstacles in this scenario surround whether or not there is a loan agreement in place and if repayments have been made.

If no loan agreement is in place this will be an obstacle in proving the money was actually a loan. In these circumstances where there is no loan agreement in place you can still mount an argument that it was a loan if you have made repayments to your parents ever since the money was given 

You also may not be aware of how far along the sale process is. For example, your partner may have listed a property for sale weeks ago without you knowing. By the time you discover that the property is for sale it could be too late. The deal could be done and there could be a contract in place.

Timing also presents an issue. Even if you know the asset is being sold, assets like cars can sell within a few days. A house obviously takes some time but there are many assets that can be sold quite quickly. This presents a risk as you don't have enough time to act.

Instead of trying to overcome all of the obstacles at once, it's important that you just focus on resolving one at a time.

Let's say you're in a situation where your former partner is trying to sell a property. You are obviously aware of the sale so timing is the issue not non-disclosure. As mentioned before timing isn't as urgent on a house but still an important obstacle to overcome straight away.

On the other hand, if you aren't even aware of your former partner's finances and suspect they are hiding assets then non-disclosure is the obstacle you would tackle first. That's because you need to know what assets your partner is trying to get rid of first, before you can even take action to stop/ take control of the sale.

So what happens next?

You are now aware that your former partner is trying to sell one or multiple assets. You know that the biggest obstacle in gaining control of the sale is timing. Now it's time to develop a to-do list and execute the actions. 

Example 1: Your former partner is trying to sell your house.

If you are in a situation where your former partner is attempting to sell your family home or an investment property without you, there are 4 things you will need to do to stop/gain control over the sale:

Example 2: Your former partner is trying to wind up their company.

If you found out, your former partner was trying to wind up a company or trying to transfer all the assets out of the company into another company the biggest obstacle will probably be the disclosure of everything.

If you're not a director of the company or if you have no actual involvement in the company, you might not be entitled to certain documents and information. The accountant might not be willing to talk to you. 

So in a company situation where you aren't getting cooperation from your former partner the first step, ordinarily is to make an urgent application to the Court. This is to seek injunctions for the transfer or sale of assets or the winding up of a company.

Finally, you need to evaluate how your actions have gone. Have your actions achieved the desired outcome?

You may give your former partner seven days to respond/ take action. If you don't receive a response in seven days, that's when you might consider further Court action.

When you are trying to stop the sale or transfer of an assets the first thing you need to do is identify the key people and things involved. 

Is it a house? A company? A car? By figuring out the exact asset/s your former partner is trying to get rid of you will be able to identify the other relevant parties involved.

If your former partner is selling your family home or an investment property then you need to know who the real estate agent is. You also need to know who the conveyancing solicitors are.

Once you know the asset/s your former partner is trying to dispose of, you need to note down the facts of the situation:

Step three is simply to confirm what you are trying to achieve.

You might not actually have an issue with the asset being sold but you want to be in control of its sale.

Now that you have your objective of gaining control of the sale (whether that be controlling the actual sale of the asset or controlling the sale to stop it from happening) it's important that you identify the obstacles that could stop you from gaining control.

The main obstacles we often seen in these situations are non-disclosure and time pressure.

You may not be aware that the asset for sale even exists. 

You also may not be aware of how far along the sale process is. For example, your partner may have listed a property for sale weeks ago without you knowing. By the time you discover that the property is for sale it could be too late. The deal could be done and there could be a contract in place.

Timing also presents an issue. Even if you know the asset is being sold, assets like cars can sell within a few days. A house obviously takes some time but there are many assets that can be sold quite quickly. This presents a risk as you may not have enough time to prevent its sale.

Instead of trying to overcome all of the obstacles at once, it's important that you just focus on resolving one at a time.

Let's say you're in a situation where your former partner is trying to sell a property. You are obviously aware of the sale so timing is the issue not non-disclosure. As mentioned before, timing isn't as urgent on an asset such as real property, but still an important obstacle to overcome straight away.

On the other hand, if you aren't even aware of your former partner's finances and suspect they are hiding assets then non-disclosure is the obstacle you would tackle first. That's because you need to know what assets your partner is trying to get rid of first, before you can even take action to stop/ take control of the sale.

So what happens next?

You are now aware that your former partner is trying to sell one or multiple assets. You know that the biggest obstacle in gaining control of the sale is timing. Now it's time to develop a to-do list and execute the actions. 

Example 1: Your former partner is trying to sell your house.

If you are in a situation where your former partner is attempting to sell your family home or an investment property without you, there are 5 things you will need to do to stop/gain control over the sale:

Example 2: Your former partner is trying to wind up their company.

If you found out your former partner was trying to wind up a company or trying to transfer all the assets out of the company into another company, the biggest obstacle will likely be the disclosure of everything.

If you're not a director of the company or if you have no actual involvement in the day-to-day running of the company, you may not be entitled to certain documents and information. The accountant may not be willing to talk to you or provide you with any relevant documents. 

So in this situation where there is no cooperation from your former partner, the first step, may be to make an urgent application to the Court to seek injunctions prohibiting the transfer or sale of assets or the winding up of a company.

Finally, you need to evaluate how your actions have gone. Have your actions achieved the desired outcome?

You may give your former partner seven days to respond/ take action. If you don't receive a response in seven days, that's when you might consider further Court action.

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When you are trying to find out what your former partner owns it's important to know where to start. To know where (and with whom) your former partner can hide things. So it makes sense that step one is to identify all the relevant parties involved in your situation.

When identifying who is involved, think about the following parties:

Your former partner is a major party when it comes to figuring out where and how assets have been hidden. One way in which your former partner can hide things and reduce the property pool is by converting cash into an expensive asset which they then under value.

Another way your former partner may hide assets is by purposely holding off on signing long-term business contracts.

As an owner of a company, it is included as an asset in the property pool. It's usually quite hard to hide a company but what your former partner can do is reduce the company's value by holding off on signing long-term business contracts that would increase the company's worth. By purposely delaying until after the property settlement your former partner avoids sharing that extra revenue with you.

If your former partner is an employee they may also hide assets by asking their employer to delay on paying them their bonus or raise; at least, until the property settlement is finalised.

Also, if they are involved in any type of work that pays in cash then they may also be able to hide this without you knowing. This is because it probably isn't reported on their tax returns or financial statements.

In cases where your former partner has re-partnered, there is a chance that they have tried to reduce the property pool (and what you are entitled to) by disposing of or hiding assets with their new partner.

Your former partner can also work with their family and friends to hide assets. Similar to a new partner they can make fake payments to family/friends for services or products. 

The same can be done with a debt repayment. This is where your former partner 'repays' a made up debt to their friends/ family. 

The money in both these scenarios is usually given back to your former partner after the property settlement is finalised.

If you have children, your former partner may try and hide money by setting up a custodial account in the name of a child.

It is common that as a couple you and your former partner used one accountant to manage your finances. This makes your accountant one of the most critical people involved in your separation. They will know what assets you each own and the assets you own jointly. 

Unlike other parties, they are unlikely to hide assets for your former partner but they are essential as they will have most of the information and documents you need. 

Similar to the accountant, your former partner's bank will not hide assets for your former partner. But, they will have relevant information that will help you figure out if your former partner is hiding assets from you. It will also give you a paper trail as to where these assets might be hidden. More importantly it will give you a truthful answer about how much they have in the bank.

Now you have a list of everyone who is or could be involved the next step is to determine the facts of your situation. This is so you can figure out what you are looking for.

So you will need to note down:

This means noting down everything your former partner has told you they have. What assets and debts are in their name? What is the value of these assets and debts? Does this information add up?

It is in your best interest to carefully review all personal and business transactions. To make sure any income or payments make sense. To make sure that they aren't making fake payments, disposing of assets or lying to you about their income/investments.

It is likely that you and your former partner have joint assets. This is good in terms of having some control over the asset, so your former partner can't just go and transfer the asset to someone else without your approval. 

However, joint assets/debts can also be risky as you are both as liable for the asset/debt. For example, if your former partner makes a redraw on your mortgage you are both liable for that debt. 

Joint bank accounts can also present a risk if the account doesn't require both signatures. Essentially, your former partner can withdraw and hide the money without needing your approval. The same issue can arise with secondary credit card holders. 

On the other hand, assets that aren't in your name can mean that your former partner can do with them as they please unless proper legal actions are taken.

If you didn't have much to do with the finances during the relationship you are at risk of your former partner hiding assets without your knowledge. This is simply because you may not know what assets you both should and shouldn't have. What assets are missing and what debts shouldn't be there.

Once you have identified who's involved and what the facts are it's important to quickly confirm what you are trying to achieve. 

The end goal is to find this/these asset/s so you can accurately determine what the property pool is. 

Now it's time to identify and assess the risks.

The main risk in this scenario is non-disclosure. Where you former partner does not tell you about some or all of their assets. 

As mentioned above some of the risks that come all with non-disclosure are:

Inaccurate valuations and an inaccurate property pool mean can mean you get an unfair split of the assets. The property pool is meant to include every single asset and debt you both own or have an interest in. If assets aren't included or the value of the assets is wrong you can end up like Jackie.

Another risk that people often don't realise are the relationships between parties. For example, your former partner might have the relationship with the accountant. This poses a risk as that accountant may be reluctant to give you documents.

In fact this has happened in matters we have dealt with where the company accountant was the father of the wife, and because of that relationship they didn't want to cooperate with us. 

The important thing here, in this step is that you identify these risks early on.

Instead of trying to overcome all of the risks at once, it's important that you just focus on resolving one at a time.

Select and prioritise the risk that needs to be dealt with first, rather than juggling too many things at once.

In Jackie's situation the main risk that she may choose to prioritise is non-disclosure.

Step six is to develop a to-do list and execute whatever actions need to be taken to reach your objective. 

For example, if your former partner wasn't cooperating and disclosing what you need, you would simply file an application in court. By filing that application you can then overcome the risk of non-disclosure as you can issue subpoenas to whoever you need information from.

Finally, you need to evaluate the outcome. To see if you have overcome the risk of non-disclosure.

This will involve looking at what the subpoena has produced and seeing whether you have found what you were looking for. 

If you have overcome this risk you can move on to the next obstacle and go through the steps again until you reach your objective. 

If the subpoena hasn't produced what you wanted (e.g. your former partner doesn't actually have a bank account at the Commonwealth Bank) then you will need to go back confirm that your objective hasn't changed and execute a new set of actions (e.g. issue further subpoenas to NAB, ANZ etc.) until you achieve the desired outcome. 

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