How To Apply For A Property Settlement

We can all agree that separating can be a stressful time. 

There's a lot that needs to be done and dividing your assets and debts is one of them.

In fact, doing a property settlement is one of the biggest and most complex tasks you may need to do when separating. It's also often one of the biggest financial decisions you'll make in your life.

That's why, in this article, we are going to take you briefly through how to get a property settlement:

What you apply for and what you do is very different based on whether or not you agree. 

So let's get started with how to get a property settlement when you and your former spouse agree on how to split things.

Stage 1: How to get a property settlement when you agree on how to split things.

If you and your former spouse agree on how your assets and debts will be divided, then you have two options:

Alternatively, if you wish to do a binding financial agreement, then you will need help from a lawyer. If this is something you wish to do, then give us a call on 1300 767 384.

We offer free, 15 minute phone consultations where you can ask any questions you may have. It'll also gives our qualified family lawyers an opportunity to give you further advice about your situation.

Stage 2: How to get a property settlement when you DON'T agree on how to split things.

If you and your former spouse do not agree on how to divide things, then you'll need to apply to the Court for a division of property.

This is where the Court makes a set of orders relating to the division of property, assets and debts. It can also include orders about spousal maintenance.

To apply for a property settlement in the Federal Circuit Court, you must prepare the following documents:

The process

If you are in a situation where you and your former spouse cannot reach an agreement on how to split things, then it's in your best interest to get some legal advice. 

Going to Court involves a lot and it can be daunting.

You need to make sure the evidence that you put before the Court is completed properly or you could mess up your own prospects in Court. If things aren't done right, there can be serious consequences, which can leave you getting less than what's fair.

Have You Run Out Of Time To Split Your Assets? 

Time Limits For De Factos.

Most people are not aware that there are time limits to make an application for a property settlement. 

You can't just separate and then five years later decide you need to split your assets. 

It's simply not fair, especially because in family law your assets keep building together until the date of settlement. 

You don't divide your assets at the date of separation. You do it at the date of settlement. Which is why the Court has time limits around getting a property settlement.

These time limits are different depending on whether you were a married or de facto couple. For now, we are just going to take you through the time limits that apply to de facto couples and what to do if the time limit has already expired.

If you are unsure about whether or not you were in a de facto relationship, you can take the quiz below. This will tell you whether or not you are considered to be a de facto for the purposes of the Family Law Act.

Stage 1: Time Limits For De Facto Couples

If you were in a de facto relationship, you have two years from the date of your separation to apply for a property settlement. 

Now this doesn't mean that you have to reach an agreement on how to split your assets within those two years. It also doesn't mean you need the Court to hear and determine your matter within those two years. You simply need to make the application within the two years. 

But what if you and your former partner agree on how you're going to split the property pool and you just want to formalise your property settlement?

As a de facto couple you never used to be able to agree to formalise your property settlement after the two year time limit. This was recently changed. Now, if you both agree to formalise, you can do so even after the two years has expired.

Where you run into trouble is when you and your former partner don't agree and the two years has already expired.

For that reason it is important that you do NOT let your former partner drag things out.

We have come across matters where one spouse drags the negotiations out over time. 

They appear to want to settle things amicably. They suggest they are happy with splitting the assets how the other person has proposed. But they simply delay on finalising or formalising the settlement.

Then, once the two years has expired and no agreement is formalised, all of a sudden they don't agree with the original agreement.

You would then be out of time to make an application for a property settlement. Meaning you could potentially miss out on your entitlement to certain assets.

Because you no longer agree on the property settlement and it's now past the time limit of two years, it makes it extremely hard and sometimes not even possible to apply for a property settlement.

If you sense that your former partner is trying to drag things out past the time limit, then we strongly suggest you make an application to the Court to protect your interest. 

If you are still unsure on whether or not you are out of time, you can use our out of time calculator below.

Stage 2: What To Do When You're Out Of Time

If you find yourself in a situation where your time limit has already expired, then you may still be entitled to make an application for a property settlement. 

In order to do this the Court must grant you leave. Leave is just like permission to proceed with your application.

The Court will only grant permission if:

Once hardship is established, the Court will also look at other factors like:

If you do find yourself in a position where you've run out of time, then it's important that you act quickly.

Where necessary, you should get legal advice on your particular situation, and depending on their recommendation, submit an application for a property settlement as soon as possible.

If you need to apply for a property settlement but don't know how, watch our video, how to apply for a property settlement, which is linked below.

Have You Run Out Of Time To Split Your Assets? 

Time Limits When You Were Married.

Most people are not aware that there are time limits to make an application for a property settlement. 

You can't just get divorced and then five years later decide you need to split your assets. 

This is probably a really important time to highlight the difference between a divorce and a property settlement. 

A divorce simply ends your marriage. It does NOT divide your assets.

You can get divorced without doing a property settlement and you can do a property settlement without doing a divorce. They are two separate things.

It would not be fair if you were able to get a divorce (that is just to end the marriage) and then come back many years later for a property settlement. 

It would be unfair as in that time either you or your former spouse may have acquired or lost assets and built property up as separate individuals, not as a couple. 

Especially, because in Family Law, your assets keep building together until the date of settlement. 

You don't divide your assets at the date of separation, it is the date of settlement.

This is why the Court has set time limits around getting a property settlement. These time limits are different depending on whether you are married or a de facto couple.

In this article, we are just going to go over the time limits for couples who are married. We are also going to discuss what to do if you're already out of time.

Stage 1: Time Limits For Married Couples

If you have separated but are still married, and never divorced, that is you never formally ended the marriage, you can apply for a property settlement at any time. 

There are no time limits that apply to you at this stage.

However, it is always a good idea to do it as soon as possible, because as mentioned earlier, your assets keep building together.

For example, you might build up a successful business years after separation, or you might win the lotto. You don't want your former spouse many years later to be able to make a claim on those assets. 

But there are no time limits if you're still married.

On the other hand, if you were married, separated, and then formally divorced, you have one year from the date the divorce took effect to apply for a property settlement.

This means you have to apply to the Family Court or the Federal Circuit Court before the 12 month expiry.

It does not mean you need to reach an agreement within the 12 months and it does not mean the Court has to hear it within the 12 months. You simply have to make the application by then. 

But what if you and your former spouse agree on how you're going to split the property pool and you just want to formalise your property settlement?

If you and your former spouse agree on how you want to divide your assets and just want to formalise this agreement, you can still do so even if the one year has expired.

Where you run into trouble is when you don't agree on how the assets should be divided and it's already been more than one year since your divorce.

Do not let your former spouse drag things out.

We have come across matters where one spouse drags the negotiations out over time after the divorce.

They appear on all accounts to want to settle things amicably. They suggest they're happy splitting the assets how the other person has proposed, but they delay on actually formalising the agreement. 

Then, once the 12 months has expired and no agreement is formalised, they don't agree with the original agreement. 

You would then technically be out of time to make an application for a property settlement. Meaning you could potentially miss out on something that you're entitled to.

Because you no longer agree on the property settlement, and now the time limit has passed, it makes it extremely hard and sometimes not even possible to apply for a property settlement.

If you sense that your former spouse is trying to drag things out past the time limit, then we strongly suggest you make an application to the Court to protect your interests. 

If you are still unsure on whether or not you are out of time, you can use our out of time calculator below.

Stage 2: What To Do When You're Out Of Time

If you find yourself in a situation where your time limit has already expired, then you may still be entitled to make an application for a property settlement. 

In order to do this the Court must grant you leave. Leave is just like permission to proceed with your application.

The Court will only grant permission if:

Once hardship is established, the Court will also look at other factors like:

If you do find yourself in a position where you've run out of time, then it's important that you act quickly.

Where necessary, you should get legal advice on your particular situation, and depending on that recommendation, submit an application for a property settlement as soon as possible.

If you need to apply for a property settlement but don't know how, watch our video, how to apply for a property settlement, which is linked below.

Am I Still A De Facto If They Are Married To Someone Else?

One of the questions we often get asked is:

Am I still in a de facto relationship if my partner is married to someone else?

If you're in a situation where you and your partner are in a de facto relationship, but they are also married to someone else at the same time, then you can still be considered to be in a de facto relationship. 

You can still be in a de facto relationship as well as being married to someone else. Alternatively, it might be that you're in a de facto relationship, and your de facto partner is married to someone else.

As a de facto couple, under the Family Law Act, you may be entitled to make an application for a property settlement.

For Example

If you and your former partner had been dating for three years.

You had both put in a lump sum of $40,000 to purchase a house together.

You then later find out that they're married to someone else.

The fact that they're married to someone else does not stop you from being considered to be in a de facto relationship with that person. It also doesn't stop you from being entitled to make an application for a property settlement. 

This situation is a lot more common than you might think. 

Often, when people separate, they may not formally divorce, but they remain separated from their married spouse for a long period. They might then re-partner but still not formally divorce their former husband or wife. 

This does not stop them from being in a de facto relationship with someone else. 

In a situation like this, things can get a little complicated because your former spouse's husband or wife, may also be entitled to a share of their assets, so there could effectively be two claims to the same asset or same property pool.

If you do find yourself in one of these situations and you want to pursue a property settlement, then I highly recommend you get some legal advice at some stage.

This is so that you know your rights and what you may be entitled to. If you would like some further advice, please give me a call on 1300 767 384 or email me at [email protected]. 

What To Do If Your Spouse Is Denying That A De Facto Relationship Existed

What do you do if your spouse is denying that a de facto relationship existed?

This is a question we see a lot in family law.

Often we see it in situations where:

It's a common thing in family law.

If you find yourself in that situation where your former partner's denying that a relationship ever existed, the Court must make a decision.  A decision on whether there was a de facto relationship for the purposes of family law.

If the Court does decide that there was a de facto relationship then you will be able to proceed with a property settlement.

7 things the Court may consider when determining whether a relationship existed.

There are many things that the Court may consider when determining whether a relationship existed for family law purposes. However, there are 7 things they are likely to look at. These include:

Example: Dale & Amy

Dale and Amy were in a relationship for three years. 

Amy lived in Brisbane and Dale was a fly in, fly out worker in North Queensland. 

Dale had a property up in North Queensland in his name where he would live during the weeks he was working. For one week of each month, Dale would return to Brisbane and he would live in the property owned in Amy's name.

Dale would also make the mortgage repayments on the property in Brisbane in Amy's name.

Amy and Dale would go on holidays together. They would jointly be invited to weddings. They would often attend those weddings as a couple.

When they separated, Dale tried to say that they were not in a committed relationship. He said it was a casual thing of convenience where he would see her just for the one week in each month. Therefore, on that basis, he said Amy wasn't entitled to make an application for a property settlement because they weren't considered to be in a de facto relationship. 

Amy on the other hand, said, no, they were in a de facto relationship. Amy explained that she was financially dependent on Dale, especially with him making mortgage repayments on her property.

Amy added that they would spend each Christmas together with either family. They were also marked as 'in a relationship' on Facebook, so the public perception was that they were in a committed relationship.

The result

It's likely that if Amy made an application for a property settlement, Dale would deny her right to do so. 

The Court would then be faced with making a decision about whether or not there was a de facto relationship for the purposes of the Family Law Act.

As mentioned earlier, the Court would look at:

In this situation, Dale would only spend that one week, but that may not be fatal to Amy's case.

Which on both parties evidence it did.

This would be the evidence of Dale making those mortgage repayments on Amy's property.

The fact that Dale would live in Amy's Brisbane property every time he returned.

This would include being marked as in a relationship on Facebook and attending those weddings, holidays and Christmases together.

The Court will consider all of these aspects. After that, they would need to determine whether they thought Amy and Dale we're in a de facto relationship. 

If the Court decided they were, Amy would then be entitled to make an application for property settlement to divide hers and Dale's assets.

If you find yourself in a similar situation, and you're concerned about whether or not a de facto relationship existed, please give us a call on 1300 767 384. We'll be more than happy to answer any questions you may have about your situation.

How To Determine If You Are Or Were In A De Facto Relationship

First comes love, then comes marriage? Well, not really anymore. 

In today's day and age, a lot of couples are choosing not to get married. 

Let's face it, with the cost of weddings nowadays, it kind of makes sense.

So, if you weren't married and you decided to separate, are you still entitled to a property settlement?

Well, to be entitled to make a claim against your former spouse's assets, you need to have either been married or considered to be in a de facto relationship. 

So, how do you determine whether you were in a de facto relationship?

Step 1: You must be in a relationship with them.

To be considered a de facto for family law purposes, you must be living together as a couple on a genuine domestic basis.

You cannot be married or related.

But, you can be in same-sex relationships.

Note: You can still be in a de facto relationship with someone, even if you or that person are married to someone else.

Step 2: You must meet one of the 4 following requirements.

Just living with someone does not automatically entitle you to make a claim for a property settlement.

You must be able to satisfy the Court of one of the following four things before the court will make orders for a property settlement.

1. The length of the relationship was at least two years.

So, you've lived together for at least two years on a genuine domestic basis.

When the Court has to consider whether the parties were in a genuine domestic relationship, they will look at things like:

Those are just to name a few.

2. There is a child of the relationship.

The second thing that you might be able to satisfy the Court on is that there is a child of the relationship.

You may not have lived together for that two-year period that's required in stage one, but if you have a child together you may still be able to satisfy the Court that you are in a de facto relationship.

This does not include a child that you or your former spouse may have had with another person.

3. Your relationship was registered under prescribed law of state or territory.

This one is pretty self-explanatory. If you've registered your relationship as a de facto one, then you may have satisfied that step.

4. The person applying to the Court for a property settlement has made substantial contributions to the relationship and a failure to make an order or a declaration would result in a serious injustice.

These contributions might be things like:

AND, if the Court does not make an order or declaration a serious injustice would occur.

An example of when a serious injustice would NOT occur, is a situation where you undertook domestic duties around the house in a short relationship and there are no children.  This would not be enough to satisfy the Court that a serious injustice would occur if property settlement orders were not made.

An example of when a serious injustice may occur, is a situation such as Judy & David's:

Judy gives David $60,000 from her own personal savings to ensure that David has enough to buy an investment property. This property is purchased solely in David's name.

When David and Judy separate, David sells that investment property and he doesn't give Judy any of the money from the sale.

In this circumstance, Judy might be able to satisfy the Court that a serious injustice would occur if the Court does not make an order or a declaration.

The injustice would occur because if an order were not made, Judy would not be entitled to a property settlement despite her significant contribution to the
purchase of that property.

So if you were in a relationship with a person, you were not married or related to them, and you meet any of those four requirements just mentioned, then it's likely that you might be considered a de facto couple for the purposes of family law.

It's very important to note that the definition of a de facto couple varies for different purposes.

For example, for Centrelink it's very different to what we've discussed today. What we've discussed today and for the purposes of the Family Law Act only, so that it's very important to note.

If you're still unsure about whether or not you are or were in a de facto relationship, then you can take the de facto quiz below.

If you were in a de facto relationship and you've separated, you might be entitled to make a claim for a property settlement. This means you are entitled to divide yours and your former spouse's assets to ensure you each receive the share you're entitled to.