Stanford Legal, Author at Stanford Legal

In Australia, yes, it is legally possible to finalise your divorce before completing the property settlement; however, this approach requires careful consideration of the potential consequences and benefits.

Understanding Divorce and Property Settlement

Divorce

Divorce is the dissolution of a marriage by a court. Once granted, it officially ends the personal relationship between spouses.

In Australia, a divorce can be applied for only after a mandatory separation period of 12 months.

When the parties have lived separately and apart for 12 months the court accepts that fact as evidence that the marriage has irretrievably broken down.

Irretrievable breakdown has been the sole ground for divorce in Australia since 1976.

Property Settlement

Property settlement, on the other hand, involves the distribution of assets and liabilities between the spouses following the breakdown of their marriage or de facto relationship.

Real estate, investments, savings, and debts belonging to the parties are divided between them in this process.

The goal of a property settlement is to achieve a fair and equitable division as per the Family Law Act 1975, considering various factors like the property available for distribution, the duration of the marriage, contributions by each party, future needs of the parties and fair and equitable considerations.

How Divorce and Property Settlement Typically Interact

Divorce is a stand-alone proceeding either by way of a single or joint application to the court.

The only requirement to be eligible to apply is that the parties have to be separated for 12 months.

Once a divorce order is granted by the Registrar, there is a cooling off period of 30 days after which the order becomes final.

Spouses can begin property settlement negotiations as soon as they decide to separate and can finalise these arrangements any time before or after the divorce is granted.

However, once the divorce is finalised, parties have a time limit of 12 months to initiate property settlement proceedings if no agreement has been reached earlier.

Failing to meet this deadline will result in permission or leave having to be obtained from the court to make an application out of time.

It is important to manage the timing of both processes, as decisions in one area can significantly impact outcomes in the other.

Advantages and Disadvantages Of Divorce Before Property Settlement

Advantages:

Speed and Closure: Finalising a divorce before settling property can sometimes expedite the emotional closure from the marriage, allowing individuals to move forward.
Simplicity in Certain Cases: For couples without significant shared assets or where prenuptial agreements are in place, finalising the divorce first might simplify the proceedings.

Disadvantages:

Financial Uncertainty: Completing the divorce before property settlement may lead to financial uncertainty. Without a formal settlement, one party may find it difficult to make long-term financial plans, as the distribution of assets remains undecided.
Legal Complications: There is a risk of legal complications if the property settlement is delayed until after the divorce. For example, if one spouse’s financial situation changes dramatically post-divorce, it could affect the fairness and outcome of the settlement.
Time Pressure: The 12-month time limit to initiate property settlement proceedings after divorce adds pressure and may force parties to settle hastily or inadequately.

Choosing whether to divorce before settling property should be done with consideration of these factors, ideally with guidance from a legal professional.

In our experience having a property settlement first is a safer option.

Ready to start the divorce process? Find out how to get a divorce in Australia.

Benefits of Completing Property Settlement Before Divorce

Although you can choose to divorce before property settlement, you may choose to settle property issues before finalising the divorce.

This invariably simplifies the process as there is no pressure of having to race against time to get a settlement done before the time limit.

Getting divorced first compels parties to rush to court to preserve the limitation date.

It can also provide:

Clarity and Certainty: Resolving financial issues early provides both parties with clarity and certainty about their financial futures, which can reduce stress and conflict during divorce proceedings.
Emotional Relief: Finalising the financial aspects early in the separation process can provide emotional relief, allowing both parties to move forward and focus on adjusting to their new lives separately.

Completing property settlement before the divorce can often reduce the likelihood of prolonged disputes and emotional stress.

Property Settlement After Divorce: Time Limit

Limitation Date

After a divorce is finalised in Australia, there is a strict statutory time limit within which former spouses must initiate property settlement proceedings

You have 12 months from the date your divorce becomes final to finalise a property settlement by consent or commence proceedings.

Failing to meet this deadline will result in having to first obtain the leave or permission of the Court to issue proceedings out of time.

Such leave is granted sparingly and subject to the discretion of the Court.

Extensions and Exceptions

There are certain circumstances under which the standard time limits for initiating property settlement proceedings may be extended or exceptions applied. These include:

Hardship: If you can demonstrate that failing to extend the time limit would cause you or a child significant financial hardship, the court may consider granting an extension.
Consent of Parties: Both parties can agree to extend the time limit by signing a formal agreement. This is typically handled by legal representatives to ensure that the extension is legally binding.
Court Discretion: The court has the discretion to allow an application outside the usual time limits if it believes it is just and equitable to do so. This usually requires proving that exceptional circumstances prevented an earlier application.

These exceptions are not granted lightly, and the burden of proof lies with the person seeking the extension. It’s advisable to initiate property settlement proceedings well within the standard time limits to avoid the complexity and uncertainty of seeking an extension.

How to Navigate Property Settlement Efficiently

Seeking Legal Advice

Consulting with a legal professional is crucial during both the divorce and property settlement processes.

A legal expert can provide essential guidance on your rights and obligations, help you understand family law, and ensure that all legal documents are correctly prepared and submitted.

Legal advice is invaluable for making informed decisions.

Whether you’re facing the initial stages of a divorce or you’re deep into property settlement negotiations, the right legal assistance can make all the difference.

Contact Stanford Legal for expert advice and representation.

Our experienced family law team are ready to guide you through every step.

Book a free consultation today to learn more about how we can help!

Divorce is a significant life event that brings about change and uncertainty and a lot of the time, you won’t even completely understand how to get a divorce. At Stanford Legal, your collaborative legal team, we understand these personal and emotional complexities, particularly for spouses with children.

We’re here to make the legal aspects of divorce clear and manageable, offering reassurance and guidance every step of the way. Our approach is centred on providing compassionate, tailored advice to help you move forward with confidence, knowing your interests are protected and your voice is heard.

What is considered a divorce in Australia?

The decision to end a marriage isn’t made lightly, and the process reflects the need for careful consideration. In Australia, the main requirement for a divorce is the irretrievable breakdown of the marriage, evidenced by a 12-month separation. This separation demonstrates to the courts that reconciliation isn’t expected. Even if you continue to reside under one roof for practical reasons, the separation is valid with the right documentation. Stanford Legal is adept at navigating these requirements and will help you compile the necessary evidence, treating your circumstances with the respect and discretion they deserve.

Preparation before applying for a divorce

As you consider the prospect of divorce, being thoroughly prepared can provide a sense of control during an emotional time. The path to divorce begins with preparation, both legally and mentally. At Stanford Legal, we recommend collating important documents like your marriage certificate and financial records before starting the application, but understanding the emotional journey is just as critical as the paperwork.

You will need the following documents and information to start your divorce application:

Identification

A valid form of identification for both parties.

Marriage Certificate

An original or a court-certified copy of your marriage certificate.

Citizenship Documents

If you or your spouse were not born in Australia, provide evidence of citizenship, visa, or residency status.

Details of the Separation

Including the date and arrangements during the separation period, especially if you have still been living together under the same roof.

Financial Records

Comprehensive details of income, assets, and debts.

Parenting Arrangements

If applicable, a parenting plan or evidence of the current arrangements for the care of children.

Our team of family lawyers stands ready to support you through your divorce, ensuring that you feel educated and empowered for the process ahead. We’re committed to offering clear and straightforward guidance, making sure that you’re not only prepared on paper but also thoroughly understand what you are entitled to and the impact of the decisions you make.

The Application Process

Navigating the application process for divorce can seem daunting, but with step-by-step guidance, it becomes manageable. Here’s a simplified overview:

Filing the Application

Complete the divorce application form, ensuring all details are accurate and the grounds for divorce are clearly stated.

Submitting Documents

Along with your application, submit all required documents to the court.

Serving the Application

If filing a sole application, legally provide (serve) the other party with the application and supporting documents.

Court Hearing

Attend the hearing, where the details of your application will be reviewed.

Outcome

If the court is satisfied, they will issue a divorce order, which becomes final after one month and one day.

Throughout this process, having Stanford Legal by your side means you have guidance that protects you and steers you towards the best possible outcome.

Child custody and support during a divorce

At Stanford legal, when children are part of the divorce equation, their wellbeing becomes our central focus. Our approach to child custody and support matters is always infused with compassion and a commitment to achieving stability and security for the young lives affected.

Our role is to guide you through these sensitive matters, ensuring decisions are made that reflect the best interest of your children and your rights as a parent.

Property and financial settlements

Resolving property and financial matters is a crucial step towards a new beginning. The aim is to reach a settlement that is fair and just for both parties, considering the unique circumstances of your relationship. Assets and debts are carefully assessed, which includes everything you’ve both acquired, from real estate to superannuation, investments, and personal belongings, as well as any debts.

At Stanford Legal, we believe in a fair and equitable division that respects the contributions each person has made and the future needs of both parties. We understand that fair doesn’t always mean equal, but what’s just and equitable for your specific situation.

Finalising the divorce

Your divorce becomes final when the court issues a Divorce Order. This occurs one month and one day after your divorce hearing, provided the judge has granted the divorce.

This legal decree is significant—it means you are no longer married and are free to remarry if you choose.

Moving Forward with Confidence

As you move beyond divorce, know that Stanford Legal remains at your side. Our commitment to guiding you through the transition is steadfast, grounded in our values of empathy, education, and empowerment. We provide ongoing support, advice, and counsel as you navigate the post-divorce landscape, particularly in updating your Will, ensuring that you do so with confidence and clarity.

If you seek a compassionate partner to guide you with personalised legal support, our team is here to help you forward. Reach out to us to find out how we can assist you in moving forward with confidence, empowered with the knowledge that comes from empathetic legal guidance and education.