Recently I had a couple of cases where clients have wanted to divorce but hadn’t completed a property settlement. When I suggested that they should complete a property settlement first I get the response “But I just want to get a divorce”.
So what is the difference between a “divorce” and a “property settlement”?
Divorce is formal finalisation of the marriage. The Federal Circuit Court of Australia is the Court which deals with Divorce. It is largely a procedural matter:
- Have the parties been married more than 2 years?
- Is the relationship irrevocably broken down?
Sure, if there are kids, it’s a bit more complicated but if the answer is “yes” to both questions, under our “no fault” system, the Divorce Order will be granted by the Court. BUT, a Divorce Order doesn’t resolve the property, financial or parenting issues resulting from a separation.
Even if you don’t own any property, you should still seriously consider formalising a property settlement. Otherwise, your ex has the potential to seek property Orders sometime in the future…and it does happen: that unexpected inheritance, that payout, lottery win, meeting the new spouse and buying property together… It gets messy.
The solution: finalise your property settlement before getting on with that new beginning. Even if the settlement consists of the most basic Orders that you keep what you have, they keep what they have. It means you know where you stand and can confidentially move towards the future with the confidence that your ex won’t be looking over your shoulder.
Even if it is an amicable separation, that all changes when they meet the new partner and have found LOVE….