If you and your partner have separated (or are considering separation), it’s important to understand the legal processes involved. Divorce and property settlement are often thought of as one and the same, but they are two distinct matters. This guide will help you navigate these processes with clarity.
Divorce: Legally Ending the Marriage
A divorce is the legal end to a marriage and can only be granted after 12 months of separation. It’s important to remember that divorce does not automatically resolve issues relating to property, finances, or child custody. Those require separate processes.
How to Apply for Divorce
You or your ex-partner can apply for divorce either jointly or individually. Here’s what you need to know:
- Joint Application: If you both agree, you can file a joint application for divorce. As it is a joint application, neither party needs to attend the court hearing.
- Sole Application: If one person applies for the divorce, and there are no children under 18, you also don’t need to attend court. However, if there are children under 18, the applicant must attend the hearing.
It’s important to note that divorce does not include property settlement, parenting orders, or child support arrangements. These need to be handled separately.
Financial/Property Settlement:Dividing Assets After Separation
Property settlement refers to the division of your combined assets and liabilities following a separation. This can include everything from your house and cars to superannuation and personal debts. The goal is to reach a fair division based on the financial and non-financial contributions of both parties.
What Are Net Assets?
Net assets are all of the couple’s combined assets (cash, real estate, vehicles, superannuation, etc.), minus their liabilities (mortgages, loans, credit card debts, etc.). Reaching an agreement on how these assets will be divided can be done outside of court, which is often quicker and less stressful.
How to Formalise Your Agreement
Once you and your ex-partner agree on a property settlement, it’s crucial to make it legally binding to avoid disputes later. This can be done in two ways:
- Consent Orders: You can apply to the Federal Circuit and Family Court of Australia for Consent Orders, which formalise your agreement. These orders are legally binding and enforceable by the court.
- Binding Financial Agreement (BFA): Alternatively, you can enter into a Binding Financial Agreement. This agreement outlines how assets will be divided and ensures that both parties uphold the terms.
Common Legal Terms You May Encounter
During the divorce and property settlement process, you will come across several legal terms. Here’s a quick guide to some of the most common ones:
- Consent Order: An agreement between both parties that has been approved by the court, becoming a formal court order.
- Divorce Order: A court order that legally ends a marriage.
- Registrar: A court-appointed lawyer with the authority to grant divorces, sign off on consent orders, and handle other legal tasks during the separation process.
What Happens if You Can’t Reach an Agreement?
If you and your ex-partner are unable to reach an agreement about the property settlement, the matter may need to be resolved in court. However, this should be considered a last resort due to the time, stress, and cost involved. It’s always better to try to negotiate and come to a mutual understanding where possible.
Conclusion: Finalising Your Separation
Both divorce and property settlement can be challenging processes, but they don’t have to be combative or complicated. Understanding the difference between them and taking the time to formalise your agreements properly will help you move forward smoothly.
One of the best ways to expedite your divorce and property settlement is to keep things amicable. Disagreements can drive up legal costs and increase emotional strain. For more on why an amicable approach is crucial, check out our blog on Navigating Financial Separation.
At Div-ide, we specialise in helping couples reach fair and amicable agreements, so you can move on with peace of mind.
Contact us today to learn how we can help you formalise your divorce and property settlement efficiently.