Property division can be complicated and you need to make sure that you are getting what you are entitled to.
Do we have to be divorced to split the property?
As soon as you have separated you can make arrangements to split your property and debts between you and your former partner; you do not have to wait until you are divorced. However, if you do divorce, then if you want a formal property settlement through the Family Court, you must apply within 12 months from the date the divorce becomes final.
Do we have to go to Court?
No, not at all. If you have already agreed on how things should be divided, we can draw up the document which will finalise the arrangements, and then get underway the process which will formally split the assets (“Consent Orders”).
What if we can’t agree?
Firstly, you should try to resolve any disagreements through negotiation, for example, dispute resolution. If this does not resolve the matter then an application for property orders can be filed with the Family Court of Western Australia. This application must be made within 12 months of your divorce becoming final.
How does the court decide?
The Court takes a four-step approach to determining a property settlement. Firstly the Court will identify all the assets and liabilities of you and your former partner (the “total net asset pool”). This may include things you brought into the relationship, those acquired after separation, as well as those acquired during the relationship.
Next the Court will consider the contributions made by you and your former partner to the acquisition, maintenance and improvement of the net asset pool. Contributions can be financial, non-financial (for example working in a family business) and as a homemaker or parent.
After having determined the division based on the contributions of the parties, the Court will then consider whether any adjustment should be made based on the future needs of the parties, for example factors such as their income earning capacity, state of health and parental responsibilities.
Lastly the Court will consider whether the decision is just and equitable given the circumstances of the case.