Property Settlements

If you opt to move out of a property, it may be difficult to get access to the property again. If you only take your personal belongings with you when you leave, then it can be very difficult to get furniture and other household items you need to set yourself up in other accommodation.

So while moving out does not affect your rights to the property in terms of the settlement, on a practical level it can be difficult to get back into the property.

Where there are issues with domestic and family violence, your personal safety should be a priority in which case leaving is likely to be the best course of action.

It is possible for a couple to be separated but to continue living in the same home during the twelve months, which is known as ‘separation under the one roof’. If a couple is separated under the one roof, they will need to prove to the Court that they were actually separated during this time.

Read more about moving out of the family home and common mistakes people make when separating.

As family lawyers, one of the first pieces of advice we provide to our clients, if they are considering separation from their spouse or partner, or have already taken the leap, is to change access and specific passwords. 

It is common these days for couples to be sharing accounts and passwords, and, even if the separation is thought to be amicable, it is always advisable that passwords are changed in order to avoid potential reviewing of confidential data.

• Your computer access password or PIN
• Phone and tablet PINs
• Your online banking login details
• Email account passwords
• We have written an in-depth guide that covers all of the access and security considerations that anyone separating should read. You can find it here.

When you do this, ensure you don’t change the password to a simple or duplicate password or anything else you’ve used previously.  Remember that even the most amicable of separations can and do turn sour, so doing this early on protects you for the longer term.

Read more about how to protect vulnerable information

Regardless of whether one or both of you have business interests and regardless of whether one or both of you are involved in the same business, you will need to disclose all financial information as part of the property division process. 

A valuation of any business interests is required and business interests will be considered when calculating the overall asset pool.

This means that potentially a business may be up for division. There may be ways around it though.

Read more about separation, divorce & business ownership

While some people might wonder ‘Why would someone want to start this process so soon? Isn’t that ‘too quick’ or insensitive?’

It’s important to remember that the decisions that you and your former partner make and put in place informally now may be detrimental to you, those you care for, as well as the impact on businesses, in the short and longer term.

Even people with the very best of intentions for each other can have the whole experience evolve differently to what they intended, through no intentional fault of either party. What you don’t want to occur can become reality as we have seen for so many people who have waited too long to seek professional advice, or done so far too late in the piece.

Rather than looking at it as insensitive or ‘too quick’, look at seeking professional advice about information gathering to allow you to make better decisions. You may not immediately act on the advice or tell your former partner but it will assist you to make decisions.

Read more about financial risks when delaying a property settlement

Read about considerations in times of economic uncertainty

Figuring out who gets what in a divorce settlement is rarely as black and white as splitting everything down the middle. Being informed about the process and objectives of a property settlement can help manage expectations from the start and minimise disputes and uncertainties.

Unlike a divorce application, property settlements can commence (and be finalised) at any point after separation. Delaying a settlement until after your Divorce Order application will not only cost you time, but may throw additional curveballs into negotiations (for example, one spouse may have received an inheritance during the separation period).

Read more about the property settlement process

Read more about property settlement entitlements

Learn about international property settlements here

Read more about how trusts are treated in separation & divorce

Typically there are a number of Do’s and Don’ts when financially separating. One ‘Do’ is, before making decisions about how your finances and assets will be managed, getting advice from an accountant. This is important, particularly if you or your former partner have interests in trusts and companies.

Often people make decisions that may trigger tax implications that are only realised later on. This may mean they have to go back to renegotiate which often creates tension and disputes. Seeking tax advice, financial planning and estate planning advice, in conjunction with the advice of a specialist family lawyer, is an incredibly beneficial place to start, before you commence any negotiations about who gets what.

Read more about the do’s & don’ts of financial separation

A retirement plan is typically set up to provide sufficient income for two in the fashion in which they have become accustomed to – but it’s not enough to sustain them if they are separated and running two households. When separating or divorcing, suddenly both people often have to considerably cut their costs.

So many times people come to us having already made decisions that they are unaware are in fact, to their detriment. Often that includes leaving the family home because they feel it’s the right thing to do or, the thought of staying in the matrimonial home feels too distressing.

For some, they seek advice looking to determine if a separation is financially feasible for them. That is, to determine if they can both live the lifestyle they had before, but separately. For others, it’s about getting advice really early in the piece so they can get a picture of what their future life will look like.

Read more about separation and divorce in retirement

Before you start the process, it is incredibly important that you understand yourself and what you need from your lawyer.

Consider whether you are a detail-oriented person. Are you going to want to know all the mechanics, the plan, and the steps involved in executing the plan? Or, are you a “big picture” person and engaging your lawyer to fix the problem for you, and don’t need to know all the steps involved in how your lawyer will go about executing it?

Ideally, the relationship between you and your lawyer should be a short-lived one, because your matter is resolved amicably, quickly, and cost-effectively. However, you should bear in mind that there is always a chance you could end up in a three-year relationship with your family lawyer. Which, in some cases, could be longer than the relationship with your ex-partner. It is important that you feel comfortable with your family lawyer and that they understand your goals and needs. This will set you up for success when navigating your separation together.

Read more about how to choose a family lawyer