How Long After Separation Can You Claim Property in Australia? Time Limits Explained

At Doolan Wagner Family Lawyers, we know that navigating the complex world of property settlement after a separation can be overwhelming for our clients.  

However, by understanding the legal timeframes, the property settlement process, and the role of legal professionals, individuals can confidently move forward and secure a fair division of assets.  

This comprehensive guide aims to clarify these aspects and empower readers with the knowledge they need to make an informed decision. 

Property Settlement Timeframes: Married VS. De Facto

 In Australia, property settlement claim deadlines vary depending on whether the couple was in a marriage or a de facto relationship. These deadlines are designed to promote a smooth, timely resolution of property settlement matters and avoid a party having to defend a claim by their ex many years after separating or divorcing. 

Married Couples

Under the Family Law Act 1975, married couples have 12 months from the date their divorce becomes final to apply for property settlement. The date a divorce becomes final is one (1) month and one (1) day following the Divorce Order being made at a Divorce Hearing. This timeframe should be taken into consideration when signing legal documents. Adhering to this deadline is pivotal, as neglecting it could lead to significant legal complications and potential forfeiture of rights to claim property. 

Being aware of this time limit and acting promptly can save both parties significant time, stress, and financial resources. 

De Facto Couples

Conversely, the Family Law Act gives de facto couples two (2) years from the end of their relationship to apply for property settlement. Like married couples, those in a de facto relationship must be mindful of this deadline and act accordingly to circumvent any legal issues or forfeiture of property claim rights. 

As soon as possible after separation, it is important to seek legal advice from specialist de facto relationship lawyers to help navigate the property settlement process within the prescribed time limit. 

In the case of both married couples and de facto couples, the deadline to make an application includes filing an Application for Consent Orders upon reaching a negotiated settlement. In the event the time limitation period is close to expiring and a negotiated settlement has not yet been struck or settlement documents finalised, parties may want to consider filing a Court application so as to “preserve” their position and ensure they are not barred from seeking an adjustment of property interests.  

Navigating the Property Settlement Process

The property settlement process encompasses a series of steps geared towards achieving a fair and equitable division of assets and liabilities. These steps include first identifying the assets and liabilities, assessing each party’s contributions, and considering future needs.  

At Doolan Wagner Family Lawyers, our property settlement lawyers can offer insightful guidance and support throughout the property settlement process, guaranteeing careful consideration and resolution of all aspects. 

1. Identifying Assets, Liabilities, Superannuation and Financial Resources

Assets refer to items that an individual possesses, such as real property, funds in a bank, investments, and possessions, while liabilities are debts that an individual is obligated to pay, such as mortgages, loans, and credit card debt. Superannuation can be held by an individual in different forms including for example a retail or industry accumulation fund, defined benefit scheme, self-managed superannuation fund. A financial resource is not specifically defined in the Family Law Act but is typically something which offers a future financial benefit to a party (e.g. a future pension entitlement, a prospective inheritance, carried forward tax losses, long-service leave or an interest (and not a controlling interest) in a discretionary trust). A financial resource is not available to be divided between the parties but can be considered by the Court in dividing the other net matrimonial pool of assets, liabilities and superannuation.  

When going through a property settlement, parties must disclose all interests they have in property, whether held by them individually or jointly and whether in Australia or overseas, as well as superannuation entitlements and any financial resources they have.   

Both parties are obliged to maintain transparency and honesty in disclosing their financial positions. This obligation is ongoing until the conclusion of their matter.  There can often be a dispute as to the characterisation of property as well as the value attributed. Seeking independent legal advice is essential to help both parties understand their obligations, position at law and ensure a smooth and transparent process. 

2. Assessing Contributions

In determining a just and equitable division of property, the court considers each party’s financial and non-financial contributions during the relationship. Financial contributions may encompass income, property, and other financial resources obtained prior to and during the relationship as well as following separation. On the other hand, non-financial contributions can include homemaking, child-rearing, and other support roles that one party provides to the other. The Court will often consider the contributions made by each party in the context of the length of the relationship.  

3. Considering Future Needs

Consideration of both parties’ future needs is vital when dividing property. Factors such as age, health, earning capacity, care of any children, financial resources available to each party and other factors related to the future requirements of each party are considered.   

By taking a comprehensive approach and considering the unique circumstances of each case, the court can ensure a fair and equitable outcome that meets the future needs of both parties. 

3.4. The Court must then be satisfied that the distribution of the parties’ net matrimonial pool of assets, including superannuation, is just and equitable, including the “mix” of property and superannuation each party is to receive.  

The Role of Legal Professionals

 Family lawyers and mediators, as legal professionals, have an indispensable role in the property settlement process. They offer expertise in managing intricate matters such as asset distribution, child custody, and financial obligations, ensuring that both parties comply with their legal obligation to reveal all their assets completely and honestly. 

By providing guidance and representation, legal professionals can help clients navigate the complex world of property settlement and reach a fair and equitable agreement as well as ensuring it is documented in such a way that it is binding, enforceable and “reality tested”.  

Family Lawyers

Family lawyers are crucial in the property settlement process, providing legal counsel and direction to those going through a divorce or separation and aiding them in understanding the intricate legal system associated with property matters. They can assist clients in negotiating and achieving an equitable and reasonable settlement, considering aspects such as financial contributions, future requirements, and the welfare of any children involved. Family lawyers also manage the requisite paperwork and documentation for the property settlement process and represent their clients in court when necessary. 

In addition to providing legal assistance, family lawyers can: 

• Supply emotional support and direction to clients during what may be a challenging and tense period. 
• Assist clients in controlling their emotions and concentrating on attaining a beneficial result for themselves and their family. 

• Be invaluable in navigating the property settlement process and ensuring a just and equitable outcome. 

Mediation

Mediation, a dispute resolution process, involves a neutral third party, aka a mediator, who aids the parties in reaching an agreement. The mediator interacts with the parties separately and then jointly to analyse the matters and assist them in arriving at a consensus. Mediation can be a cost-effective and less contentious alternative to court proceedings, assisting couples in reaching an agreement they can both accept on their own terms. 

By allowing the parties to retain control over the resolution of the dispute, mediation can lead to a more satisfactory outcome for both parties, as opposed to having a court determine the outcome. Furthermore, mediation can help reduce the potential for acrimony and conflict, making it a more amicable and cooperative process. 

At Doolan Wagner, our experienced family mediation lawyers are adept at solving complex disputes and helping parties reach a property settlement agreement without the stress and expense of going to court. 

Formalising Property Settlement Agreements

 For property settlement agreements to be legally enforceable, formalisation through either Binding Financial Agreements (BFAs) or Consent Orders is necessary. Formalising these agreements reduces the risk of further claims and provides certainty and finality to the property settlement process. 

Binding Financial Agreements (BFAs)

A Financial Agreement, commonly referred to as a Binding Financial Agreement (BFA) is a legally binding document that outlines the division of property in the event of a breakdown of a relationship. It can be established prior to, during, or after a relationship. It is necessary to obtain independent legal advice prior to executing a BFA. BFAs can provide a clear and enforceable framework for the property division, ensuring that both parties are bound to the agreed-upon terms. 

It is necessary to obtain legal advice for BFAs to guarantee that the agreement is legally binding. Family lawyers can help draft and review BFAs, ensuring both parties’ terms are fair and equitable. They can also provide guidance on the agreement’s potential implications, such as tax consequences and any fees associated with the process. 

Consent Orders

Consent Orders are orders made by the Family Court that formalise the agreement reached between the parties regarding property settlement. Consent Orders provide: 

• Certainty and finality to the property settlement process. 
• Obligation for both parties to adhere to the agreed terms. 
• Legally binding and enforceable status once authorised by the court. 

To obtain Consent Orders, an application must be lodged with the Family Court. The court will assess the agreement and, if satisfied it is just and equitable, will issue the requested orders. Legal professionals can assist in preparing and submitting the application, ensuring that the agreement is just and equitable and complies with all legal requirements. 

Superannuation and Property Settlement

In the context of separation, superannuation can be divided between parties, though it is ordinarily inaccessible as cash until retirement. Legal advice is recommended when dealing with superannuation in property settlements, as the process can be complex and may have significant financial implications. 

Understanding the treatment of superannuation in property settlements is essential to secure a fair and equitable division of this significant asset. 

Post-Separation Property Acquisition

Even assets acquired post-separation can be factored into the property settlement, as the court considers the entire asset pool for a fair division. This means that any property or debt acquired after the separation will be considered during the property settlement process. 

It is important for individuals to be aware of this and to disclose any post-separation assets or liabilities, as failure to do so can lead to various consequences including a less favourable property settlement outcome or costs being awarded against them.  

Spousal Maintenance and Property Settlement

While spousal maintenance is a distinct financial support paid post-separation, it can be evaluated in conjunction with property settlement for a fair outcome for both parties. Spousal maintenance aims to provide financial assistance to a spouse who cannot provide for themselves after separation.  

When determining the amount and duration of spousal maintenance, the court takes into account various factors, such as: 

• the financial needs and capacity of both parties; 
• the age and health of both parties; 
• the income, property, and financial resources of both parties; 
• a standard of living that is reasonable; 
• the responsibilities to support any other person, including a child; 
• the duration of the relationship; and 
• the contributions made by each party to the relationship, including as a homemaker or parent. 

Any determination as to spousal maintenance needs to be made in the context of the contemplated property settlement.  

Extending Property Claim Time Limits

Under certain circumstances, like demonstrating hardship, extensions may be granted to the time limits prescribed by the Family Law Act. However, court permission is required and not always guaranteed. To apply for an extension, a valid reason must be provided, and the court will consider the application based on the circumstances of the case, the extent of the delay, and the potential ramifications of the delay on the parties involved. 

If you have exceeded the deadline for making a property settlement claim, our lawyers can help you understand the process and requirements for an extension application. 

The Bottom Line: Get Expert Advice and Make Your Property Claim Right Away

Along with child custody, property settlement is the major point of contention during a separation or divorce. Contrary to the portrayal in movies and TV, the division of assets is rarely a clean 50/50 split, and understanding all the assets and liabilities accumulated throughout a relationship is exceedingly complex. 

With all this in mind, it’s paramount you consider your property settlement claim early in your separation and secure independent legal advice as soon as possible. Luckily, our highly experienced divorce lawyers are here to assist you with all aspects of the property settlement process to ensure you get what you deserve. 

Get in touch with our family law team today to discuss your property situation and how we can help.