Property Settlements | Phelan Family Law

The basis on which both married and de facto couples can finalise their property settlement is detailed in the Family Law Act 1975.

If it is appropriate to make an adjustment of your property, the Court will consider the following:

PROPERTY
SETTLEMENTS

When can I apply for a divorce?

In order to apply to the Court for a divorce, you must be separated from your spouse for at least 12 months. The only ground for the granting of a divorce in Australia is that the marriage has broken down irretrievably. This means that there is no reasonable likelihood that you and your spouse will reconcile. This is evidenced by the period of 12 months separation. If you have been married for less than 2 years, it is necessary to undergo counselling before you are eligible to apply for a divorce. You can find the Application for Divorce Kit on the Family Courts website.
When are we regarded as legally separated?

There must be some communication to your spouse, by words or actions of your intention to separate. Sometimes the Court will grant a divorce in circumstances where you and your spouse continue to live in the same household, but you need to provide evidence from an independent party about the circumstances of your relationship before and after the separation date.
Can I get a divorce before we sort out our property matters?

Yes you can. You need to be aware that once you are divorced there is a 12 month time limit to apply to the Court for a property settlement and/or spousal maintenance. Only in limited cases will the Court allow you to commence proceedings after this time.
What about the children of the marriage?

If you have children under the age of 18, the Court must be satisfied that there are proper arrangements for the care, welfare and development of the children in place before a divorce is granted.

SPOUSAL MAINTENANCE

Knowing your rights

When can I apply for a divorce?

In order to apply to the Court for a divorce, you must be separated from your spouse for at least 12 months. The only ground for the granting of a divorce in Australia is that the marriage has broken down irretrievably. This means that there is no reasonable likelihood that you and your spouse will reconcile. This is evidenced by the period of 12 months separation. If you have been married for less than 2 years, it is necessary to undergo counselling before you are eligible to apply for a divorce. You can find the Application for Divorce Kit on the Family Courts website.
When are we regarded as legally separated?

There must be some communication to your spouse, by words or actions of your intention to separate. Sometimes the Court will grant a divorce in circumstances where you and your spouse continue to live in the same household, but you need to provide evidence from an independent party about the circumstances of your relationship before and after the separation date.
Can I get a divorce before we sort out our property matters?

Yes you can. You need to be aware that once you are divorced there is a 12 month time limit to apply to the Court for a property settlement and/or spousal maintenance. Only in limited cases will the Court allow you to commence proceedings after this time.
What about the children of the marriage?

If you have children under the age of 18, the Court must be satisfied that there are proper arrangements for the care, welfare and development of the children in place before a divorce is granted.

The Family Law Act provides for defacto and married couples who need financial maintenance after separation.

However, as far as practicable the Court should make Orders that end the financial relationship between the parties and avoid any further proceedings.

MEDIATION & DISPUTE RESOLUTION

At Phelan Family Law, we try to keep our clients out of the Court process. There is a better way to separate, and mediation and family dispute resolution is an important aspect of this.

When can I apply for a divorce?

In order to apply to the Court for a divorce, you must be separated from your spouse for at least 12 months. The only ground for the granting of a divorce in Australia is that the marriage has broken down irretrievably. This means that there is no reasonable likelihood that you and your spouse will reconcile. This is evidenced by the period of 12 months separation. If you have been married for less than 2 years, it is necessary to undergo counselling before you are eligible to apply for a divorce. You can find the Application for Divorce Kit on the Family Courts website.
When are we regarded as legally separated?

There must be some communication to your spouse, by words or actions of your intention to separate. Sometimes the Court will grant a divorce in circumstances where you and your spouse continue to live in the same household, but you need to provide evidence from an independent party about the circumstances of your relationship before and after the separation date.
Can I get a divorce before we sort out our property matters?

Yes you can. You need to be aware that once you are divorced there is a 12 month time limit to apply to the Court for a property settlement and/or spousal maintenance. Only in limited cases will the Court allow you to commence proceedings after this time.
What about the children of the marriage?

If you have children under the age of 18, the Court must be satisfied that there are proper arrangements for the care, welfare and development of the children in place before a divorce is granted.