Confused about property settlement following the breakdown of your marriage? Dobinson Davey Clifford Simpson, one of Canberra’s largest and experienced law firms answers your questions.

What are the steps involved?

Property settlement involves three steps, firstly determining the net asset pool (which are the assets such as real estate, shares, savings, motor vehicles less any debt). Secondly, assessing each party’s contributions to those assets whether they be financial or non-financial including homemaking and parenting. Thirdly, the Court may make an adjustment based on “future need” factors including income, income earning capacity and responsibility to care for any other person including a child under 18 years. As an overarching consideration the Court will not make Orders (by consent or otherwise) unless the Orders are “just and equitable”.

When can I apply for a property settlement?

You can apply for a property settlement at any time following your separation. You do not have to be divorced to apply for a property settlement. However if you are divorced you must apply for a property settlement within 12 months of your divorce unless the Court extends that time period.

I owned my own home outright at the commencement of my relationship with my husband. Does that mean that I get more of our property settlement?

Possibly. Assets which are owned by either party at the commencement of the relationship or which they contribute to the relationship (such as an inheritance) may be taken into account in determining the ultimate split up of their assets. The extent to which those contributions are taken into account will depend on the duration of the marriage and the extent to which those assets are a proportion of the total asset pool. Legal advice should be obtained about these types of circumstances. This area as it is not uncommon particularly in second marriages for one or both parties to have contributed assets at the commencement of the relationship.

What about superannuation?

Superannuation is considered to be an asset by the parties however particularly if it is in the growth phase it may be treated differently from other assets that the parties have to divide. The Court may make splitting Orders in addition (or instead of) adjusting the ownership of other assets between the parties.