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SEPARATION, PROPERTY SETTLEMENT AND DIVORCE – WHAT THESE TERMS REALLY MEAN
Mon, 1 Apr 2019
The family law solicitors based in our Gold Coast office have noticed lately that the terms ‘separation’, ‘property settlement’ and ‘divorce are often used in the incorrect circumstances, especially when someone going through a separation is chatting to family and friends, and the incorrect use of these terms can lead to confusion.
To clear up any confusion, we thought we would go over these terms, and explain a little bit more about them in easy to understand language, so if you are going through a separation, you know the general steps involved and what happens at each step along the way.
Firstly, ‘separation’ is relatively straightforward. This is the process of severing the relationship between two parties and generally occurs when it is communicated by one party to the other (or both agreeing) to the separation or when one party moves out and the parties commence living separate lives.
Separation can be between de facto parties or married parties, and the actual act of separation does not necessarily finalise the relationship between the parties, as there may be property involved (house, cars, furniture etc), children of the relationship, or other circumstances that need to be properly finalised in order for both parties to in fact commence living separate lives.
This is where the term ‘property settlement’ comes in.
While people often use the term ‘divorce’ when contacting our family lawyers, they are often actually referring to the ‘property settlement’ process rather than the actual process of obtaining a divorce.
‘Property settlement’ is the process of dividing the asset pool of the parties (comprised of houses/land, cars, furniture, superannuation and other tangible and non-tangible assets) between the parties.
The parties can do this themselves if the separation was amicable or if the property pool is small (i.e. they were renting and they each just agree to take their own cars/superannuation etc), or this process can involve a lawyer if the property pool is larger, or if the parties are not agreeing on the distribution of assets.
Even if the parties are amicable, we would always strongly recommend that whatever agreement is reached between the parties is properly documented by a solicitor to ensure that it in fact severs all ties between the parties (as far as is practicable). Many people are not aware that their ex-spouse could in fact have a claim against property that has been accumulated by them post-separation (and sometimes 10 or 20 years down the track!) so they are able to move forward and commence living their lives separately without issues cropping up later down the track.
There are several different options available to document and formalise a property settlement, and each option has its own pros and cons, and there are also various associated costs to take into account with the different options. For example, an agreement can be formalised by way of:
- Consent Orders; or
- a Binding Financial Agreement.
The timeframes in which you can formalise your property settlement vary (depending on whether you are married or de facto at the time of separation, or have divorced since separation) and therefore we would strongly encourage you to organise a consultation with one of our friendly family lawyers as soon as possible after separation so you are aware of these time frames.
As detailed above, the process of applying for a divorce is separate to the property settlement process. A ‘divorce’ is essentially the process of obtaining a legal Certificate of Divorce in order to terminate the marriage between the parties. It is done by way of an application to the court and can occur on its own without a property settlement, or can be done at the same time as a property settlement (albeit it remains a separate application and process).
It is advisable that before undertaking the divorce application process you seek legal advice. Our experienced solicitors can help you to understand the relevant rights and responsibilities that you may need to consider prior to lodging an application and the law that applies to your particular case.
Please contact our experienced and friendly Family Law Team at Affinity Lawyers on the Gold Coast today on 07 5563 8970 to discuss your query.« Back to Articles
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