Is property divided 50/50 after separation?
No. There is no starting percentage when working out a property settlement. For information about how the Family Court makes a decision about property settlement, please see How does the Family Court deal with a property case. As all families are different and manage their finances differently, this process will likely result in a different outcome for you than other family or friends who may have separated.
Are there any time limits to getting a property settlement?
If you were married to the other person, you have 12 months from the date your divorce becomes final to seek a property settlement through the Family Court.
If you were in a de facto relationship with the other person, you have two years from the date of separation to seek a property settlement through the Family Court.
There are some limited circumstances where the court will grant an extension to these time limits. Seek immediate legal advice if you are close to or have passed the time limit and want to seek a property settlement.
Everything is in my former partner’s name – can I still get a property settlement?
Whose name an item of property is in will usually make no difference to whether or not it is available for division following separation. The Family Court may take into account all property in either person’s name, regardless of how or when it was acquired. There are some limited circumstances where an item of property may not be available for division. You should seek legal advice about your particular circumstances to see if this may apply in your situation.
I haven’t finalised my property settlement and I want to buy a house. Will the other person get a share in the house?
Usually all the property owned by either partner is taken into account when the Family Court is determining a property settlement. However, this does not mean that the other person will automatically receive a larger property settlement than they would have if you had not purchased the house.
You should seek legal advice about your particular situation before making any significant financial decisions while waiting to finalise a property settlement.
What if my former partner wants to sell the house and I don’t?
If the house is in your name or in joint names, your former partner will need your agreement to sell the house. If the house is in their name only and you think they may sell the house without your agreement, you should seek urgent legal advice about obtaining an injunction to prevent the other person from selling the house until a property settlement can be agreed.
Do I have to have a lawyer to get a property settlement?
No. You can make an agreement with the other person without the assistance of a lawyer. Many people will come to their own agreement and then use a lawyer to put it into writing or into consent orders. Others seek preliminary advice from a lawyer about the property settlement process and then deal directly with the other person. You should seek independent legal advice before signing any written agreements.
Why can’t a lawyer guarantee what I will get in a Family Court property settlement?
There are no set formulas used by the Family Court in determining a property settlement. There is also a certain amount of discretion involved on the part of the judge or magistrate. The best a lawyer can do is provide you with a range of possible outcomes based on the legislation and previously decided cases.
Do I have to get Family Court orders about my property settlement?
If you have come to an agreement about property settlement with the other person, there is no requirement to have the agreement formalised into Family Court orders. However, court orders can assist you in dealing with organisations such as banks or lenders, and if a property is to be transferred you will not have to pay full transfer duty (stamp duty). Court orders aim to formally end the financial relationship between you and your former partner and therefore avoid either person making claims to the other’s assets in the future. It is best to seek independent legal advice before signing any written agreements.
Who has to pay the mortgage/rent/bills if one of us moves out of the house?
There are no set rules about who pays for what after a separation. It is important to stay on top of payments and expenses to ensure debts do not start to build up and cause damage to your credit rating or bring about even more serious consequences such as the bank trying to sell your home to pay off your mortgage. You could consider making an agreement with your former partner that you each pay a proportion of the expenses according to your respective financial situations until a property settlement is finalised. Seek legal advice immediately if you are unable to make an agreement about payments and you are at risk of falling behind. A financial counsellor may also be able to assist. Go to the Financial Counsellors’ Association of Western Australia website for more information on financial counselling.
Where can I get more information?
Last reviewed: 19/10/2012