How long after a divorce can I get a property settlement?

Whilst property settlement may not be at the forefront of your mind during the happy moments of your marriage, the issue becomes much more relevant after a relationship breakdown. After a divorce, you may be concerned about how your assets will be divided. In applying for a property settlement, it is important to understand that there are procedural guidelines you must follow in order to make your application valid. This article will aim to give you a concise summary about what property settlement, the conditions that must be met, and how to get it done effectively. 

Property settlement

As you may now know, a property settlement aims to divide you and your ex partner’s assets in a just and equitable manner. This is done through 4 steps: 

1. Identifying the asset pool

This involves understanding what assets you and your partner have and valuing them. Property in this context includes financial assets such as houses, wages, cryptocurrency, and can also include any debts and any other liabilities you may have. 

2. Any contributions to the relationship

This includes financial contributions and non-financial contributions. It is important to note here that domestic and gratuitous duties will be given their appropriate weight, even though they are not done for money. 

3. The future needs of you and your family

For the court to determine how to split up your assets, it will need to understand the future earning capacity of both parties. If one party earns much more than the other, and is much healthier, they may get a lesser share of assets. Other factors such as parental responsibility is also considered here. 

4. Confirming that the end result is a just and equitable split

To make a property settlement valid, the court will have to ensure that the property settlement is fair and equitable in all the circumstances of the case. 

Timing issues

In applying for a property settlement, it is important to keep timing in mind. For example, in the case of a divorce, an application for a property settlement should be lodged before a period of 12 months has passed since a divorce order has been finalised. 

Whilst this may sound like a small time frame, the one year period only starts when the divorce has been finalised. This means that you and your partner will have already been separated for a year prior to applying for the divorce. Thus, in actuality, you will have a two year time frame to think about getting your property matters sorted. 

You do not need to wait until after your divorce to apply for a property settlement. There are different ways you can get a property settlement, and if you choose to negotiate with your ex partner, this can be done as soon as the two of you are ready. It is recommended that you try and begin your application as soon as possible to increase your chance of meeting the time frame. 

What if I miss the deadline? 

If your particular time limit has expired, you can make a special application to the Court. Section 44(6) of the Family Law Act 1975 allows the Court to grant you permission to apply for a property settlement even if you have fallen outside the time limit. 

Importantly, proving that you would need this exception and that there was a legitimate reason for not meeting the specified time limit is difficult and time consuming. It is best to be organised and to ask for legal advice if you are struggling and fear you may not be able to lodge an application in time. 

Can I get an agreement done during the course of my relationship? 

Another way to ensure that you do not fall outside the specified time limit is to negotiate a Binding Financial Agreement (BFA). This is a legally binding document that allows partners to determine how property will be divided if the couple splits. As you are able to enter into a BFA before, during, or after the course of the relationship, it can save you time and stress if a relationship breakdown occurs. 

Creating a BFA before or during the course of a relationship is recommended, as being comfortable and happy with your partner will make for a smoother negotiation process. 

Thus, depending on what suits your particular circumstances, there are many different options to choose how you go about dividing your assets. Whilst having a BFA ready to go is helpful, a property settlement done at the end of the relationship can also be an effective way of ensuring your future needs are met.

If you need any advice regarding a property settlement after a divorce, please feel free to reach us via the contact form.