Written by: Taylor Wilson, Family Lawyer
While going through a separation is undoubtedly a challenging life event, delaying the property settlement and divorce process can exacerbate the emotional and financial toll on all parties involved. Parties may not consider it worthwhile to ‘make it official’ straight away, and ultimately elect to delay the property settlement and divorce process. This may be due to not having the emotional or financial capacity to undergo the process or out of fear of the unknown. It may simply appear easier to wait, or to return to it when both parties are ready, but they should consider carefully before doing so as waiting may cause more harm.
Limitation Periods
Limitation periods apply to former couples seeking to settle their property interests. It is essential to be aware of the limitation period that applies to your circumstances, to ensure that you do not run out of time to make an application for property or spousal maintenance. De facto couples have a two-year period from the date of separation. For married couples, this timeframe is reduced to 12 months from the finalisation of the divorce. Seeking leave of the Court is necessary for applications initiated beyond these timeframes, though such leave is not guaranteed.
Court Timelines
In addition to respective limitation periods, the timelines with the Family Court system itself can impact on how quickly your matter can be resolved. The duration it takes to resolve a matter can vary depending on a number of factors including complexity, the willingness of both parties to resolve the matter and the Court’s caseload. Availability of final hearing dates can also delay the finalisation of your matter should it require a trial listing, which can often be 6- 12+ months away. Alternate Dispute Resolution may be a suitable option to resolve your matter more efficiently and outside of court.
Fluctuation of Assets
As circumstances change over time, the value of assets, and equally debts, can fluctuate. These variations can impact the value of the pool and ultimately the distribution you receive. A prompt settlement minimizes the likelihood of disputes arising due to changes in asset values, ensuring a fair and just allocation.
Safeguarding your interests in the meantime
In the event that you are unable to commence a property settlement or divorce application as soon as you would like, there are a few things you can do in the meantime to ensure that your interests are protected.
One of the key benefits of initiating the separation of your assets is that you can ensure that those assets can be dealt with as intended, in the unexpected event of a death of one of the parties. If you and your former spouse are registered as joint tenants of the title of any matrimonial properties, should you pass away, your interest in that property will pass to your former spouse in a principle known as “survivorship”. Severing any tenancies will ensure that your interest passes to the beneficiaries of your estate, rather than your former spouse.
Further, you should ensure that your death benefit nominations under any superannuation, life insurance policies or other investment vehicles are up to date, as well as you Will, to dismiss your former partner should you so wish.
What now?
An experienced Family Lawyer can assist you in understanding these processes, and advise you on the peripheral issues you may not have considered when separating. Ultimately, a timely resolution of property matters benefits all parties involved, supporting a smoother transition into the next chapter of their lives. If you need assistance in commencing your property settlement or divorce, contact our office today.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Family Law Team
