Do I Need to be Divorced Before I Can Finalise My Property Settlement?

Charissa Duffy writes about when you should apply for a divorce and the timing of finalising your property settlement.

I am often asked “Do I need to be divorced before I can finalise my property settlement?”  The short answer is no.

Once you have been separated for 12 months you can apply for a divorce and the mere fact of being separated for 12 months will be enough to prove to the Court that there has been an irretrievable breakdown of your marriage.

So when should you apply for a divorce?  The answer depends entirely on your circumstances.

You have only 12 months from the date of your divorce to reach agreement about spousal maintenance and property settlement matters or to apply to the Court for a determination as to how the assets/debts are to be divided and on the question of spousal maintenance.  So if you want to keep your options open as long as possible before finalising a property settlement or making a spousal maintenance application then holding off on applying for a divorce is probably best.

But if you want to close the door to your former spouse as quickly as possible particularly where spousal maintenance is concerned then you may want to apply for a divorce as soon after 12 months has lapsed from the date of separation.  Often the longer you wait to divorce the more complex your property settlement can become.  You may enter a new relationship or acquire or dispose of assets and these events can muddy the waters when trying to work out how to divide property and sever financial ties with your former husband or wife.

If more than 12 months pass from the date of the divorce order becoming final you are out of time to make an application and you are then in the hands of the Court’s discretionary power to decide whether or not to extend the limitation period to allow your application for property settlement (and or spousal maintenance) to progress.

Whether the discretionary powers apply requires careful consideration and will depend on your specific circumstances.

You should obtain legal advice about your options and next steps before bringing any application to settle property and spousal maintenance matters out of time.

Tindall Gask Bentley is a leading Australian family law firm. For further information or assistance with your legal issue contact us.