Family & Relationships

What Are You Entitled To in a Divorce Settlement?

A divorce is certainly a very difficult period for couples. Aside from being involved in an emotional rollercoaster, there's also the necessity to settle everything and finally move on. However, the trickiest thing about a divorce is who gets what after it's done. Dividing assets and property can be a real challenge and the court decides how such assets should be distributed. Many people are not fully aware of what they're entitled to after the divorce has been settled. 

In such cases, they come out of the settlement feeling like they've ended up with the short end of the stick. Still, divorce and property settlement are actually two different legal processes in Australia. To file for a divorce, a couple must be separated for at least 12 months, beforehand. On the other hand, a property settlement can be initiated at any time and even before you apply for the divorce. With that in mind, here are a few things you're entitled to in a divorce settlement. 

Same rules apply for de facto and married couples

De facto couples aren't married but the court may recognize them as such regardless. This is especially true if a couple has lived together in a genuine domestic relationship. For instance, the court takes into consideration factors such as a de facto couple having lived together for at least two years, a child being involved and the spouses' financial and non-financial contributions. 

The difference between married and de facto couples is that de facto couples don't have to apply for a divorce after separation but they do have to apply for a property settlement within 2 years if an agreement can't be reached. As for dividing the asset, in shorter marriages or relationships, the court may decide to return each partner the property they own, whereas in longer marriages or relationships, the court may decide to divide everything equally due to the fact that one spouse's contributions offset the others. 

Dividing assets

As mentioned before, how assets and property are divided depends on how long the relationship or marriage has lasted. The court follows a specific set of steps when evaluating the asset pool that each spouse brought into the marriage. For longer marriages, contributions are perceived as equal and thus both assets and property are divided equally. However, that's not always the case. Unique facts and cases may result in a different outcome. 

That's why consulting with a family law attorney may shed more light on the matter if you happen to be in such a situation. In the majority of cases, however, the court begins to value all assets and property both spouses own. Regardless of who owns what and who paid for what or if it was acquired before or after the marriage, the court will recognize assets as equal to both parties. 

Assets acquired after separation

The property pool that the court takes into consideration is the pool of assets both spouses own on the day of the hearing, not the date they've separated. That's why assets acquired after the separation cannot be excluded from the settlement. 

That's also the reason why it's strongly advised for couples to finalize both the divorce and the property settlement as soon as possible or as soon as they separate. Another important thigh to know is that Australia has a no-fault divorce law. In other words, the spouse responsible for the divorce, such as a cheating spouse, for instance, won't get a smaller share of the property or assets during settlement. 

Changing titles and prenuptial agreements

Some spouses consider it to be a good idea to change titles of a property or freely give it away to a relative in order to exclude it from the settlement pool. This, however, is considered as committing fraud and you can face major penalties. 

As for the prenuptial agreements, they do exist in Australia and they are recognized under the Binding Financial Agreement. These agreements are made by couples who are contemplating marriage and they are only valid in the court if any of the spouses haven't obtained any legal advice before signing it.  

Dividing assets after a divorce can be a complex situation. In most of the cases, both spouses get their equal share of both assets and properties. However, specific cases and unique situations may change the outcome, but such situations are best discussed with an attorney.