Separation is never easy; one of the trickiest parts can be figuring out what happens with your property. Photo: Michelle Kroll.
So, you’ve separated. What now?
There’s a clear process for sorting out who gets what after a separation in the ACT, but it’s still easy to feel overwhelmed if you have no idea what to expect.
Take one step at a time, starting with a clear understanding of what’s actually on the table.
First off, it’s important to note ‘property’ in this context extends beyond the family home. The property pool between partners can include joint or personal real estate, bank accounts, superannuation, vehicles, debts and more.
Unlike some countries where property is split 50-50, Australian law focuses on reaching a just and equitable outcome for both parties.
If your settlement goes through the courts, they’ll consider financial and non-financial contributions, current and future needs, and the overall circumstances of your relationship to determine how assets should be divided.
Tim Nicholls, a partner at Nicholls Anzani Family Lawyers and accredited specialist in family law, says property settlements following separation are an exercise in discretion.
“We have a clear framework to advise on what a person is entitled to in a property settlement,” he says.
“In the case of a separation, the outcome is almost entirely determined by the relationship’s unique circumstances.
“This is a case of show and tell, not hide and seek. Your obligations start with a full and frank disclosure of financial affairs.”
The property settlement process can be broken into five steps, which the court can engage with in any order.
To begin, the court decides whether to issue a property settlement order based on the separated couple’s circumstances.
“There have to be circumstances that warrant a property settlement taking place,” Tim says.
“For example, if the parties intermingled their finances and assets or had children together. The length and other relationship factors will also be considered.
“This essentially stops people who have been dating for a short period of time from trying to access their former partner’s property.”
Next, you and your former partner will be required to formally disclose your finances.
This includes assets, liabilities and financial resources.
If you feel apprehensive about sharing financial documents with a former partner for safety reasons, adjustments and redactions can be made.
Family lawyer Timothy Nicholls says property settlement is a case of show and tell, not hide and seek. Photo: Nicholls Anzani.
Step three assesses how and what each person has contributed to the relationship.
Financial and non-financial contributions are counted. So if you worked full-time while your former partner looked after the home or family, both will be considered and assessed.
“We look at what you bring into the relationship, what you do during the relationship, and any contributions you made after separation,” Tim says.
“Once these are outlined, each party will be allocated a contribution percentage.”
Courts may depart from this allocation if it’s just and equitable, based on circumstances such as family violence, intentional wastage of assets, and housing needs.
It’s then time to determine whether you should receive a greater share of the property pool because you have superior needs now or are likely to in the future.
Age, health, primary care for children, parental decision making, income-earning capacity, and financial resources will all be considered.
This is also where the court decides whether spousal maintenance, child support, or a one-time payment should be made to cover future needs.
Finally, the court steps back and looks at the big picture.
You and your former partner’s percentage-based entitlements to the property pool will be confirmed and settlement orders made.
Tim says a calm, empathetic approach is needed to make sure every client understands their rights and obligations. He always recommends seeing an accredited specialist in family law over a generalist.
“More often than not, we’re dealing with someone’s capacity to meet their mortgage repayments, put food on the table and pay for their kids’ schooling,” he says.
“You don’t go to a brain surgeon to do your heart surgery – the same can be said for lawyers.”
It’s no secret that when feeling overwhelmed, it’s harder to retain information and make informed decisions. So take it slow, find a lawyer who will look after you, and remember – a new chapter of life is just around the corner.
For more information, visit Nicholls Anzani Family Lawyers.
