Separation in Australia and the timelines for your property settlement

If you have recently separated from your spouse or de facto partner and are wondering about timeframes to complete your property settlement, the starting point is to be aware of the legal principle of “separation” under Australian law.

It is important that you understand:

• What legal separation means under Australian law;
• How to formally separate from your spouse or partner;
• What to do if you are not sure about the date of separation; and
• Why the date of separation matters to your property settlement.

What is legal separation?

Legal separation is the date that a married person, or a person in a de-facto relationship, communicates to their spouse or partner that they no longer want to continue in the marriage or relationship and that the marriage or relationship is at an end.

The decision to separate does not need to be a mutual decision.

How do I formally separate from my spouse or partner?

Separation can be communicated verbally (over the phone, or in person), in writing (such as via text message or email) or even through a lawyer.

There have been many cases where a date of separation has been hotly contested.  Therefore, it is very important that the intention to separate is communicated clearly, and preferably in writing.

What if I don’t know the date of separation?

Separation is a significant life event and is usually a period during your life you can remember.

If you are having trouble working out the exact date you and your spouse or de facto partner separated, you can ask family or friends who supported you during the period of separation to corroborate the date of separation.  You can also use technology to establish the date of separation, such as reading text messages or emails on your phone or reviewing bank statements at around the time of separation.

Why does the date of separation matter?

Determining the date of separation is important under Australian law, because:

• If you are married, you must wait a period of twelve (12) months and one (1) day from the date of separation before you can make an Application for Divorce.
• Once you are divorced, there is a time limit of one (1) year to commence legal proceedings in the Federal Circuit and Family Court of Australia (the Court) to have your property settlement determined by a Judge;
• If you are in a de facto relationship, the time limit to make an application to the Court to have your property settlement determined by a Judge is two (2) years from the date of separation;
• The financial and non-financial contributions made by you and your former spouse or de facto partner will inform the overall property settlement you are entitled to and are assessed as at the commencement of your relationship (whether you were married or in a de facto relationship), during your relationship and post-separation.
• The asset pool is calculated at the time the agreement is reached and not at the date of separation. This means that if you receive money or purchase property after you have separated, it may be included in the asset pool available for division between you and your former spouse.   The asset pool available for division includes your property, the property of your former partner and joint property, with the value of property being taken as at the time it is being divided.
• If you or your former spouse or de facto partner receive an inheritance or gift after separation (for example, a lump sum of money from a parent or family member) or make substantial contributions after separation (for example, as a primary caregiver) this may result in the person who made that contribution ultimately having a greater entitlement in the final division of the asset pool.

What are the exceptions to the time limits to apply for a property settlement after separation?

There are some circumstances where you can make an application to the court to have a property settlement determined out of time.  These circumstances may include:

• Where the primary parent of the children of the relationship requires a property settlement to ensure that the children are financially supported;
• Where both parties to a marriage or de-facto relationship have made contributions to property which is registered in only one person’s name; and
• Where it would be too unfair for the Court to deny a property settlement.

If you or your former partner are out of time to make an application to the court for a property settlement the permission of the court (known as “leave”) will be required.

As the granting of leave to apply for a property settlement out of time cannot be guaranteed, it is important that you take steps to negotiate and finalise your property settlement promptly following separation.  You can negotiate directly with your former spouse or partner, through a Family Dispute Resolution Service, or through lawyers.

For more information about legal separation and how property division works in Australia, contact the Family & Relationship Law Team at Coulter Legal for a no-obligation 30-minute consultation with one of our experienced family lawyers.