How is Divorce different from a Family Law Property Settlement?

One of the most common mistakes people make when separating is confusing the process of divorce with the process of reaching a property settlement. The two issues are dealt with separately by the Court. Couples need not have filed an Application for Divorce to reach a property settlement nor must couples have agreed upon a division of property before being granted a Divorce Order.

The Family Law Act 1975 (Cth) abolished fault-based divorce and replaced it with a sole ground, that a Divorce Order may be made where a marriage has broken down irretrievably, evidenced by 12 months’ separation. Part IV of the Family Law Act 1975 (Cth) provides that in an Application for Divorce, the applicant must prove:

  1. The court has jurisdiction to hear the Application;
  2. There is a legal marriage;
  3. The marriage has irretrievably broken down;
  4.  If there are children of the marriage under the age of 18, that proper and appropriate arrangements for their welfare and development have been made; and
  5. That service of all requisite documents has been effected (you must ensure that your former spouse has been given adequate notification of the pending divorce application, this must be done at least 28 days before the hearing date if they reside in Australia and there are provisions in the Family Law Rules regarding service of court documents overseas).

Part VIII of the Family Law Act 1975 (Cth) sets out the process by which the Court may adjust property interests in reaching a property settlement for separating married couples. Similar provisions relate to separating de facto couples.

It is not necessary for  couples to have obtained a Divorce Order before entering into negotiations regarding the division of property. In fact Caroline Counsel Family Lawyers strongly advocates that you start your property negotiations as soon as practicable after separation. This is for financial but also psychological reasons and you are much likely to achieve a negotiated agreement with Lawyers assisting if it is closer to separation and provided you choose a non court based process to assist you.

Unlike an Application for Divorce, separating couples may negotiate a property settlement or file an application in Court in circumstances where there is no agreement, any time after separation.

It is important to note however, that upon having a Divorce Order granted, couples have a limitation period of 12 months to initiate Court proceedings for a property settlement. This means that upon being granted a Divorce Order by the Court couples have 12 months to apply to the family courts for a property settlement.

Caroline Counsel Family Lawyers Family Lawyers can provide you with specific advice about your situation and can assist with preparation of Court Documents to ensure that you can successfully apply for Divorce. We can also assist you with negotiating a property settlement.

If you need help with applying for a Divorce or you wish to discuss your matter generally, you should contact our office to make an appointment on 9320 3900 or email [email protected]

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers for legal advice.

By Harry Higgs and Caroline Counsel

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