Legislation
The Family Law Act 1975 (Cth) covers all separating couples, whether married or in a de facto
relationship, including same sex couples.
However, different time limits apply for initiating court orders on how the property is to be divided
for couples who were married verses those in de facto relationships.
Time limits
For parties who were married, you must apply to court within 12 months of your divorce order
becoming final.
Parties in a de facto relationship must apply to court within 2 years from the date of separation.
The same time limits apply to applications for spousal maintenance by married and de facto couples.
If your time limit has expired, a special application to the Court for permission to apply ‘out of time’
is available, however this is only given in exceptional circumstances. We recommend you contact
Cleofe Parsons Legal for assistance and advice.
How do family law courts make a decision about our property?
The court needs to have ‘jurisdiction,’ that is, have the power to make a decision about your
property.
For married couples the court needs to see proof that:
- Under Australian law or another country there is a valid marriage, shown by providing the court with a copy of the marriage certificate and/or certified translation if not in English; and
- either you or your spouse is an Australian citizen; or living permanently in Australia at the time a
- court application is made for a property settlement.
For de facto couples the court needs to see proof that:
- You and your partner were living permanently in Australia when your relationship broke down;
- you and your partner live in Australia on the day the court application is made;
- you lived together for at least 2 years, and
- the Applicant made a substantial financial contribution to the property, the relationship or the welfare of the family in Australia.
This can be proved with information provided in an Affidavit.
We know how we want to divide the property – what do we do?
If both parties can agree on how to divide your property, there are three options:
- Enter an informal agreement. You both do not have to go to Court or have a formal written agreement about how you are dividing your property. However, an informal agreement is not legally binding, which means it cannot be enforced if one of you fails to follow the agreement.
Note, stamp duty is only waived on the transfer of property if there is a court order. On these grounds, an informal agreement is not recommended in most circumstances. - You could ask the Court to turn your agreement into consent orders by completing an Application for Consent Orders and filing it with the Court. If the Court thinks that the agreement is fair it will make the agreement into orders, making the orders legally binding.
This usually means that neither parties can make any further claim on the property.
It is essential to get your own legal advice before signing consent orders. For more
information and advice, please contact Cleofe Parsons Legal on +61 02 4602 0868 or
admin@cp-legal.com.au
