As a Family Law Solicitor, quite often I hear a lot of confusion around the term ‘Divorce’. The term ‘Divorce’ is often used to broadly describe the end of a marriage including both the dissolution of the marriage and the division of property. So, I thought it might be useful to clear things up a bit …
Often, a Divorce and Property Settlement occur around the same time, which lends to the confusion, however, it is also not uncommon for the two to happen years apart. It is also possible to have a Divorce without a Property Settlement and have a Property Settlement without a Divorce. If you’re in a de facto relationship, you can have a Property Settlement without having either a marriage or a divorce. If you weren’t already confused, you probably are now.
There is clearly some flexibility around when and if you decide to proceed with a Divorce and/or a Property Settlement. Some of you will want to rush in and get it all over and done with as soon as possible and some of you would rather run for the hills and avoid the whole thing. However, it is important to note that there are differences between the two including the time limits that apply to each.
Put simply, ‘Divorce’ is the official ending of a marriage by an order of the Court. It is a separate and distinct legal process from a ‘Property Settlement’. Apart from ending your marriage, the only result of a Divorce is gaining the ability to remarry should you decide you want to revisit that institution! Hey, I get it, I’m on my second trip to the institution myself!
You must be separated from your spouse for at least 12 months before you can apply for a Divorce. While Parenting and property issues do not need to be commenced or finalised at the same time as your Divorce application, if there are children of the marriage that are under the age of 18 years, then the Court will need to make sure that proper arrangements have been put in place for their care and welfare.
A ‘Property Settlement’, on the other hand, is the formal and final division of assets, liabilities and financial resources between yourself and your spouse.
With or without a Divorce, Property Settlement can occur any time from the date of separation. However, if you have applied for a Divorce and a Divorce Order has been made, you have up to 1 year from the date your Divorce became final to commence Property Settlement proceedings. If you are in a de facto relationship, you have 2 years from the date of separation to commence proceedings for your Property Settlement.
Confusing the terms ‘Divorce’ and ‘Property Settlement’ can be problematic in many respects for example, in relation to their respective effects on a Will, Superannuation and Life Insurance.
If the thought of separating from your spouse, getting a Divorce and/or having them get their hands on all your stuff in a Property Settlement scares you or is just too confusing, give us a call at Killen and Associates and we’ll help you get it sorted!
* The image used in this article is a photo illustration named “Divorce” by Gerard Van der Leun with Creative Commons License.
Jacqui Meades has extensive experience in Family Law and Domestic Violence and strives to resolve matters outside the court system providing timely and positive outcomes with a minimum of stress.