Knowing your rights in the division process
Ownership can become a murky concept during a divorce or separation. There are a lot of variables in this process, including income, child support requirements, proof of purchase, inheritance, and other legal documentation that could all decide ownership one way or another.
Every situation is different, so if you’re not currently talking with your partner, consider getting a friend, relative or lawyer to do it for you – and always speak with your lawyer first.
Keeping it out of the courts
There are some situations where a divorce or separation can be resolved outside of court.
In these instances, you and your partner can go through a ‘dispute resolution service’ - a quick, simple, and cheap alternative. These services are Government-funded, and will take care of filing your parenting plan or consent orders with the Court. You can find a list of dispute resolution services on the Family Relationships website.
There are, of course, a number of situations where a court hearing is unavoidable. These include being the sole applicant, if you have a child under the age of 18, not being able to locate your partner, or if you can't reach a settlement through a dispute resolution service.
Generally speaking (and remember, every situation is different) you may need to attend the local Family Court and apply for a financial order. There are two types of financial orders. The first is a ‘property order’, which deals with property, income, and financial resources. The second is a ‘spousal maintenance order’, which covers the financial support of each party.
The Family Court will try to encourage you to resolve the situation with your partner first, as they require people applying for financial orders to have attempted dispute resolution before being able to file an application.
You can read more about dispute resolution here.
Working out the value of your assets
Part of the decision-making process behind asset division is figuring out how much certain things are worth. In order to decide this, you’ll probably need to hire a licensed valuer for an impartial valuation. They're the only recognised experts in courts of law, and any other estimations or values from an agent or auctioneer can’t be used.
Generally speaking, valuers will specialise in only one area - for example, property valuers, business valuers, or jewellery valuers. Your lawyer can help you find experts you’ll both agree on, and share the cost of their services.
Knowing when you can take what's yours
Generally you’ll need to wait until the final decision of the court before claiming ownership over any shared assets. This can take a bit of time.
If you’re making a claim for property adjustment (claiming ownership over a shared property), this will need to happen within 12 months of your divorce being made final (24 months if you’re in a de facto partnership).
Having a say over your children’s assets
If you have children with your partner, the courts may need to divide up what belongs to them too. Don't worry about this – the court is absolutely focused on ensuring your child's future is protected from the strains of divorce or separation.
Aside from their material belongings, there may also be financial assets to consider, such as inheritance, stocks, education funds, or gifts. These assets will need to be listed alongside your own for division with the dispute resolution service, or in court.