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.
Find out more information about separating finances when relationships end.
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., opens in new window
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.
Find more information about dispute resolution on the Family Court website, opens in new window.
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.
This could include a service for couples looking to get divorced (if married) or separated (if in a de facto relationship). This service will negotiate the division of assets and reach a settlement outside of court.
Settlement is the stage in which the two opposing parties find a resolution that they both agree on. In a divorce, or separation of a de facto couple, this often refers to the legal proceedings as they negotiate their division of assets.
A valuer is a person whose is employed is to estimate the value of something. This can include material items such as cars or property, or non-material entities such as businesses.
When somebody passes away, a section of their estate and/or assets is passed down to an heir. An inheritance is typically a cash payment given to younger heirs of the deceased, but can also include stocks, real estate, or material possessions such as jewellery.
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The information contained in this article is intended to be of a general nature only. It has been prepared without taking into account any person’s objectives, financial situation or needs. Before acting on this information, NAB recommends that you consider whether it is appropriate for your circumstances. NAB recommends that you seek independent legal, financial and taxation advice before acting on any information in this article.