If the relationship between you and your former partner has ended, you’re able to file an Application in the Family Law Courts to seek an Order outlining how the assets acquired during your relationship should be divided between you both.
In most cases, the parties to the relationship will seek to negotiate a mutually agreed split of their assets either amongst themselves or with the assistance of their respective attorneys before filing a formal action in court. The parties must legally record their agreement on the matter by obtaining Consent Orders through the court system or by signing a Binding Financial Agreement if they are able to come to a consensus on the issue in question. Most of the time, the parties will use the services of a family lawyer to assist them with the legal documents associated with the agreed-upon property settlement.
In the event that you fail to establish your property settlement facts in a formal way, the following consequences will occur:
It is possible that your former spouse or partner may make a future claim against your assets or rights even years after the divorce has been concluded since you did not formalise the agreement through Consent Orders or a Binding Financial Agreement.
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Hence why it is vitally important you seek legal advice early. You can make a free appointment with one of our family lawyers at Mediations Australia today.
The Family Law Act 1975 establishes a time limit on the length of time that parties have after the dissolution of a relationship to make claims for a division of property under the terms of the agreement. To file for divorce with the court, each spouse has 12 months from the date of the divorce to file a petition for divorce with the court. It is possible for the parties to a de facto relationship to file a claim in court two years from the date of separation. You must establish the date of your de facto separation in order to be able to determine the two-year period in issue as part of your de facto separation paperwork.
Once the time limit for submitting a claim has expired, the claim is ruled “out of time,” and the party who filed the claim is no longer legally authorised to file a claim against the other.
The fact that your assets are protected against a future claim by your former spouse or partner does not ensure that your assets will be protected in the future, since there may be exceptions to the rule that allow a claim to be filed after the statute of limitations has expired. It is possible that your former spouse may be unable to support themselves without the aid of a government pension after the time limit has ended, and they will be able to make a claim for spousal maintenance after the time limit has expired.
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Alternatively, your ex-spouse may be able to establish that they would suffer a hardship if an extension of time is not given to him or her. Then, in light of the circumstances, they may decide to make a claim for a property settlement. For example, if they would have been entitled to make a claim against your superannuation at the time of separation but did not become aware of this until after the time restriction had expired, they may be able to get an extension of time from the court.
In addition, the court has recently determined that when a Divorce Order is granted outside of the United States, the time limitation set forth in the Family Law Act 1975 will not apply to the proceedings. Regardless of how long the claim has been outstanding, either party may still file a claim in certain circumstances.
In order to protect your assets in the event that your former husband or partner makes a claim against them in the future, it is essential that you get competent legal advice on the process of formalising any agreement reached about the assets of the partnership following your separation.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.