Asset splitting after marriage separation can be a difficult and stressful process. But when you understand your options, as well as some important legal requirements, you can help to make the process go much more smoothly.
We asked the Family Law team at McCarthy Durie Lawyers to share the five key pieces of information you need to know when dividing assets with your former partner.
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1) You can decide on asset splitting without the courts
You and your former partner are able to decide on asset splitting just between the two of you. The only thing you’ll have to do is get the agreement formalised by the court, or by way of Binding Financial Agreement.
2) What to do if you and your partner can’t agree on asset splitting
If you can’t come to an agreement, then you’ll need to apply for the financial orders to be enforced by either the Federal Circuit Court of Australia or the Family Court of Australia.
Take note that before you and your ex-partner apply for financial orders, you’ll need to go through pre-action procedures, which include dispute resolution.
If you can’t come to an agreement, court intervention may be the most appropriate means to finalise your asset division.
3) How the courts decide what assets are split
The process for dividing property is decided by:
- Assessing the financial contribution made, directly or indirectly, by or on behalf of a party to the relationship or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the relationship; and
- The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the relationship or a child of the relationship to the acquisition, conservation or improvement of any of the property of the parties; and
- The contribution made by a party to the welfare of the family and any children of the relationship, including any contribution made in the capacity of homemaker or parent.
4) Splitting your superannuation
Laws around superannuation (for example, that you can’t access your super until retirement unless otherwise ordered) still apply when splitting superannuation.
However, you and your partner do have the option of splitting one or both parties’ superannuation with or without court intervention.
5) Consider the time limit when applying for asset splitting
If you are married and require court intervention, then you will need to make your application to the court within 12 months of your divorce becoming absolute – or in other words, final.
If you are in a de facto relationship and require court intervention, you have two years from the date of your final separation.
If you attempt to make an application for property division with the court outside of these time frames, you will need to ask for special permission from the court.
Seek legal advice about asset splitting for your situation
Even if you and your partner seem to agree about splitting your assets, you should still seek legal advice. That’s especially the case if:
- You or your ex-partner have gone bankrupt or have a personal insolvency agreement
- Your partner may be getting rid of property that you think you have a right to
- You’ve been asked to sign any sort of property agreement
McCarthy Durie Lawyers can give you the legal help you need. Our family law experts will advise you on the best course of action for your particular situation.
To talk about your options for asset splitting after a separation, please call one of the friendly MDL Family Law team on 07 3370 5100 or fill out the contact form here.
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