Part VIII of the Family Law Act gives the Family Court jurisdiction to settle property and maintenance matters between the parties to a marriage or former marriage. Superannuation is now considered property under the Family Law Act.
A divorce does not include the division of a couple’s property. They must put in a separate application.
An application for a division of the matrimonial property can be made at any time after the couple has separated. However, once a divorce becomes absolute, a property application must be made within 12 months. For example, if a divorce is granted in Court on 10th January 2000 (decree nisi), and it becomes a decree absolute on 11th February 2000, a property application must be filed before 11th February 2001. The Court may allow a person to apply beyond this time limit if hardship on that party or the children can be established and a reason for the delay is given. This is called ‘granting leave to apply out of time’. It is best to apply within the period of 12 months after the decree absolute to save the cost of this application.
Legal aid will not generally be granted for these applications if the person is to receive money as a result of dividing the property, though aid may be granted subject to a contribution or a charge on the property being made on settlement in some limited circumstances.
An application for property division can be made by either party at the Family Court. The Federal Circuit Court has jurisdiction over property disputes under $300,000. The Family Court has jurisdiction over property disputes over $300,000.
Agreement Between Parties
Wherever possible, the parties to a marriage should attempt to reach their own agreement about their property arrangements. This may involve taking legal advice but will also save the expense, delay and worry of a lengthy property case in court which may take two or three years to be finalised and may cost many thousands of dollars. These agreements can be made during separation and before the divorce is obtained. The agreements can be formalised by way of Consent Orders which are filed in the court and have the benefit of finalising property matters, and are enforceable.
Page last updated 13/12/2017