Divorce & finances
Do I need to divorce before a property settlement?
The short answer
No. You can deal with your property settlement before a divorce is final. Divorce ends the marriage; it does not itself divide your assets, debts or superannuation. The timing of a divorce can also affect the deadline for starting property proceedings.
Two processes, two different purposes
It helps to keep two separate questions on your list: “Have we ended the marriage legally?” and “Have we resolved our financial arrangements?” A divorce application addresses the first question. A property settlement addresses the second.
For example, a couple may start working through the home, mortgage and superannuation while they are separated but still married. Another couple may already have a final divorce order and still need advice about their financial position. Tell your lawyer which steps have actually been completed.
Check the time limit early
For a marriage, an application for property adjustment generally needs to be filed within 12 months after the divorce becomes final. For a de facto relationship, the general limit is two years after the relationship breaks down. Starting proceedings after the applicable limit requires the Court’s permission, which is not assured.
These are limits for starting court proceedings; they are not a suggestion to wait. Do not assume that ongoing negotiations stop a deadline. Give your lawyer the actual divorce order, separation details and any existing court documents so the position can be checked for your circumstances.
What if we already agree on the division?
An agreement in principle is a useful starting point. Ask how to record it appropriately and what still needs to happen to carry it out. Depending on the circumstances, formal options can include consent orders or a financial agreement.
Make a practical list of the agreed steps: what happens to the home, who is dealing with the lender, what information is needed about superannuation and whether any dates have been proposed. Your lawyer can then explain the legal documents and further advice that may be needed.
Questions to take to your lawyer
Magpie Family Law helps people in Ballarat with divorce applications and property settlements. Explain both parts of your situation in your enquiry so Daniel can discuss the assistance you need.
- Has our divorce become final, and what date appears on the order?
- Is there a deadline for starting financial proceedings in our circumstances?
- What information do we need before evaluating the proposed division?
- How should we formalise any agreement, and who will handle its implementation?
Further reading
General information only. The right approach depends on your circumstances. Speak with a lawyer about advice specific to you.
YOUR NEXT STEP
Talk it through with Daniel.
Daniel Brownlie is a family lawyer in Ballarat, assisting with property settlements, financial agreements, divorce and financial negotiations.