I am divorced, am I able to seek a property settlement?

Family Law 9 May 2018

People often ask “I am divorced, can I still seek a property settlement?”  The short answer is “yes.”

Under the Family Law Act 1975 (Cth) (“the Act”) obtaining a Divorce Order to end your marriage and settling your financial affairs do not necessarily go hand in hand.  They are two separate processes.

Generally, you are eligible to file an Application for a Divorce after being separated from your Husband or Wife for a period of at least twelve months.  Obtaining a Divorce Order will formally end your marriage, however, it does not finalise your financial affairs.

The Court allows you twelve months from the date of your Divorce Order becoming final to make an application seeking a property settlement.

A similar requirement exists for those in a de-facto relationship who have two years from the date of separation to file an application seeking a property settlement.

In the event the time periods have lapsed, being twelve months from the date of a Divorce Order being made if you were married or two years from separation if you were in a de-facto relationship, do not despair as you may make an application for a property settlement if you are able to satisfy the Court that there will be “significant hardship” suffered by you if you were not allowed to do so.

However, there is no guarantee the Court will give you permission to make such application.

My advice?

  • following the breakdown of your marriage or defacto relationship seek immediate legal advice as to how best to finalise your financial affairs;
  • in the event you have reached a financial agreement between yourselves, ask yourself, have you documented this agreement formally? If not, it is recommended you seek legal advice to ensure your agreement is binding.
  • if you are served with an Application for Divorce, ask yourself, have you and your Husband or Wife finalised your financial affairs?
  • if you have finalised your financial affairs, ask yourself, have we applied for a Divorce?

If you require any further advice or any further information on the matters discussed in this article please contact our Family Law team on 03 5273 5244.

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