How to split your assets when divorcing or separating

Understanding the ins and outs of a divorce settlement

Going through the divorce and separation processes is challenging for both you and your ex-partner. Once you have formalised your separation, you may think the worst is over. And for the most part, it is. But now, you need to look at dividing shared assets. This can feel overwhelming, to begin with, but once you know what’s involved, it will seem less daunting. Below, we’ve detailed out advice for different situations, and some examples of the process of how to split your assets when divorcing (or separating).

When to apply for shared asset division

The process of separating your assets following a divorce or separation is often referred to as a property settlement. You can apply for property settlement when:

  • You have been married, and are now separated
  • You have been married, and are now divorced, or have had your marriage annulled (note that there are time limits to annulment).
  • You were in a de facto relationship and have separated from your de facto spouse
  • You are separating from your de facto spouse

There are a number of additional conditions in relation to de facto relationships, including the length of the relationship, when you separated, and time limits, so it is best to seek legal advice as soon as possible.

If you are not married, and you separated before the 1st of March, 2009, you have different rights and responsibilities under the law. To find out more, contact Australian Family Lawyers.

What exactly does ‘property’ mean?

Lawyer in a suit drawing up a legal document on best practice of how to split your assets when divorcing

In legal terms, ‘property’ refers to things that you or your spouse own (assets) and things you or your spouse owe money on (liabilities). You can own these things individually, jointly with another individual, or by a family trust or family company.

Examples of property include:

  • Your family home
  • Money and investments
  • Inheritances and shares
  • Credit card and personal debts
  • Mortgages and loans
  • Superannuation
  • Cars, furniture, jewellery, and other valuable assets

When seeking to divvy up your assets between a separating couple, it generally does not matter whose name is on the documents, who bought which item, or who incurred the original debt. All items are considered equally co-owned.

Settling out of court

You and your former spouse or de facto partner can decide on how to settle your assets outside of court. If you agree on arrangements, you can apply for a consent order.

If you can’t reach an agreement, you’ll need to apply for the court for financial orders.

Before you apply to a court

Before you can apply to a court, you must first try to genuinely resolve the dispute outside of the Court. One way of trying to resolve the dispute is through mediation with a family dispute resolution (FDR) practitioner.

Dispute resolution services

There are a range of government-funded family dispute resolution (FDR) services available in Victoria. An FDR practitioner is a third party objective mediator, trained in negotiation and specialising in family disputes. They oversee meetings between two parties and facilitate conversations around the division of shared assets. You can find an FDR practitioner using the Family Dispute Resolution Register.

  • Pros: It costs a lot less than having to go to court
  • Cons: Not all matters are suitable for FDR, particularly where there is family violence or cases of urgency.

Going to court

If you haven’t reached an agreement using FDR services, or through negotiations between lawyers, you’ll need to apply for financial orders through the court. You can apply for orders for:

  • Property: To specify how your property, income, financial resources, and debts will be shared between the two parties
  • Maintenance: To work out if you will provide or receive financial support to or from a former spouse or de facto partner

The Family Court recommends seeking independent legal advice when applying for financial orders. At Australian Family Lawyers, we can help you understand your legal rights and responsibilities. And we can explain how the law applies to your unique circumstances.

Best of all, while talking through the financial orders, we may be able to help you reach a more favourable agreement with your ex-spouse or de facto partner.

We have a team of lawyers located throughout Sydney, Melbourne, Brisbane, and all over Australia who are highly experienced in property settlement cases and other asset matters. We can give you detailed advice about what you are entitled to, and how to make a legal arrangement when it comes to knowing how assets are divided in a divorce in Australia, whether it’s a 50:50, 60:40 or 70:30 settlement split.

Australian Family Lawyers operates solely in divorce and separation, property settlement, and children’s matters. Contact out friendly team directly or request a call back via the form below.

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