When should I apply for a Family Law Property Settlement?

18 August 2016

The only legal rules about when you should apply for a Family Law property settlement are concerning how late you can apply.  People in a De Facto relationship have up to two years after separation.  Married people have up to one year following the Divorce.  Contrary to a popular belief, you do not have to wait until you are divorced to have a property settlement.  In fact, in most of our cases involving married people, a property settlement is finalised prior to a Divorce.

Once a person makes a decision to separate, he/she is often keen to finalise property and financial issues as soon as possible.  However, if the decision to separate is not mutual, the other person may not be emotionally ready to make such important financial decisions.  But, ready or not, it is a good idea to get Family Law advice from a Family Lawyer sooner rather than later, and, before you discuss possible settlement scenarios with your partner or spouse.  Clients often come to Melbourne Family Lawyers having made a proposal to his/her partner/spouse before getting legal advice.  Sometimes, the property settlement proposal made is counter-productive.   For example, the settlement proposal may on the overly generous side of a fair outcome- which disadvantages our client in any future negotiation.  On the other hand, the settlement proposal may be so miserable that it makes the other party resentful- leading him or her to adopt the extreme opposite position in any negotiations.

Everyone’s marriage or relationship is different as every person has his or her own different personality and way of dealing with conflict.  What we try to do at Melbourne Family Lawyers is to understand both your personality and that of your spouse or partner in order to come up with the best strategy to achieve a timely settlement.

When deciding when to embark on settlement negotiation, you should also take into account the fact that the value of assets (including superannuation) changes over time.  If property settlement is delayed, this could be to the advantage of one party and to the disadvantage of the other.  Take this example:

  • At the time of separation, the family home is valued at $2,000,000
  • There is a rapidly rising house market
  • Neither party wants to face the issue of a property settlement and it takes two years for negotiations to commence, and, by that time, the value of the property has risen by 10% to $2,200,000
  • If the fair result is for the person keeping the property to pay 50%, the two year delay will have cost that person an extra $100,000!

If you have separated and need to find out about your property settlement rights, call Melbourne Family Lawyers now. We will give you our honest advice as to what is fair and provide guidance as to the best timing for property settlement negotiations.

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