What is the difference between getting "divorced" and effecting a "property settlement"?

Gabriella Pomare • November 14, 2016

We find that people often confuse the process of divorce with the process of separating and adjusting property interests. The two issues are completely separate.

You do not have to wait until you are divorced, to negotiate a property settlement with your former spouse. After separating, we recommend negotiating or filing an application in court, for the division of property. We find that it is best to enter into settlement discussions regarding property, shortly after separation.

So what is property settlement?

After separating, it is important that parties divide assets and end their financial relationship.
This is determined by courts by way of a “4-step” process.

Step one:
Identify and value the assets, liabilities and financial resources of the parties.
At times, the valuation exercise can be quite complex and require the involvement of specialist experts.

Step two:
Assess the contributions of the parties. This includes direct and indirect financial contributions to the property of the parties and contributions to the welfare of the family including contributions in the capacity of homemaker or parent.

Step three:
Assess the future needs of each of the parties.
The Court will consider such things as:

the age and health of each of the parties;
the income, property and financial resources of each of the parties and their capacity for employment;
who has the care of any child of the relationship under the age of 18 years;
the standard of living that is reasonable in the circumstances;
the extent to which the earning capacity of a party has been affected by the relationship; and
if either party is living with somebody else, the financial circumstances of their household.

Step four:
Determine whether the proposed division of property is fair to both parties.

And what is the process of divorce?

To become divorced, you are required to have been living separately and apart for a minimum of 12 months (whether in separate residences or under the same roof).

An Application for Divorce must be filed, which we can prepare, and that Application will need to be served on your spouse. If there are children under 18 years old, the court must be satisfied that appropriate parenting arrangements have been made for their care.

In the case of a joint divorce, you do not need to attend Court for the hearing. If all the requirements are satisfied, a Registrar will review the Application in chambers and will make orders.

If a sole application, it is necessary to attend court if there are children of the marriage who are under the age of 18 years old.