There are some common misconceptions when it comes to separation, divorce and property entitlements. Here’s a few things that separated people are often surprised to find out are incorrect…
- Property will be split 50/50
A very common myth about property settlement is that assets and debts are automatically divided 50/50 following separation or divorce. In some relationships this may be the case, but not in every relationship. There is no legal presumption that the Court will equally divide the assets and liabilities of a relationship. Although there have been some interesting recent cases from the Courts regarding property settlement it is still generally accepted that when determining the division of assets and liabilities an established five step approach will be followed.
- If one person had an affair the other spouse gets more from the property settlement
Where separation or divorce occurs because of unfaithfulness, it is common for the aggrieved partner or spouse to believe that the property settlement will penalise the cheating partner.
Unlike the family law systems in some countries, Australia has a no-fault family law system. This means that moral concerns such as who decided to end the relationship or have an affair are irrelevant and will not impact the division of assets and liabilities.
- An informal agreement can formalise property settlement
Even when parties are amicable, it is important to seek legal advice about property settlement to ensure it complies with the Family Law Act (1975) in order to be binding and enforceable. Even if the parties have prepared, signed and witnessed a written agreement between themselves, more often than not, these are not legally binding.
It is highly stressful for someone to learn down the track that an agreement does not meet the requirements to be binding and that their partner or spouse may have a claim on assets attained post separation, for example, an inheritance from a family member, a redundancy payout or a personal injury claim.
There are two types of binding agreements offered to separated or divorced parties under the Family Law Act. The first option is Consent Orders, where the parties make an application to the Court to have their agreement made into a court order. The second option is a Binding Financial Agreement, which is essentially a private contract between the parties. Call New Way Lawyers on (07) 3548 5868 to discuss with one of our experienced family lawyers which option is best for you.
- We must wait 12 months to do a property settlement
While there is a requirement to be separated for 12 months before the Court can grant a divorce, there is no requirement to wait 12 months before property settlement occurs. This can happen anytime after separation, but no later than 12 months after divorce for married couples, or 24 months after separation for de facto couples.
This post contains affiliate links. If you purchase using the links there is no extra cost to you but MamaMag will be paid a small commission on your sales which helps us to keep MamaMag free!