Separating assets is something you can do at any time after you separate from your partner – you don’t need to wait until your divorce is finalised.
There is in fact a 12 month time limit from the date of your divorce within which you may apply for property division or spousal maintenance orders in the Family Court of Western Australia, without having to seek special permission of the Court.
Before the Family Court can consider making any order at all, it must be satisfied that it would be just and equitable to do so. In most cases, this threshold issue is met merely by the fact that you have separated – which often means that you cannot continue to use your jointly owned property or rely on your previous joint financial relationship.
The Court will then follow a four step process when assessing your property division dispute. Those steps require the Court to –
- Identify and value your assets and liabilities, including any superannuation;
- Look into the past and consider each of your financial and non-financial contributions to the acquisition, conservation or improvements to your property, as well as contributions as homemaker and parent. The Court will make a preliminary percentage division based on these “contributions” only;
- Look into the future and assess both of your ongoing needs and personal and financial circumstances. It will then make a finding whether any adjustment to the preliminary division made at step 2 is necessary;
- Consider the effect of the findings at steps 2 and 3 and make an order that is just and equitable in all the circumstances.
What are your assets worth?
Try to reach agreement with your ex-partner about the value of your assets, liabilities and superannuation. If not, try to estimate the value of your assets such as homes, cars and businesses. You should obtain documents that provide the current balances of your superannuation; bank accounts, loans, credit cards or other debts.
If you can’t reach an agreement with your ex-partner about the value of items, you will have to appoint experts to value them. There are very specific rules that apply to the appointment of experts and the use of their evidence. You should contact your lawyer before you obtain any valuations to avoid spending a lot of money on an expert report you cannot use.
Can you and your “ex” agree on a property settlement?
You should negotiate an out-of-court settlement if at all possible, and get advice about alternative dispute resolution methods. It is best to use experienced negotiators and mediators.
If you and your ex-partner reach an agreement by negotiation or mediation, we strongly recommend that you record the terms of the agreement in the form of a consent order filed at the Family Court. This will create certainty and provide the Court with power to enforce the orders if necessary.
Always seek reliable legal advice
Property settlement, spousal maintenance and separating your financial relationship can be a daunting task, particularly when you are also dealing with the emotions of separating. You may have to make important decisions that will affect your future financial security.
You should always for peace of mind, obtain legal advice either before you start negotiating, or after you have reached an agreement in principle, to ensure that you obtain a fair settlement.
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