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