If an agreement on property division cannot be made between you and your spouse and the matter proceeds to court, the Judge will take into consideration factors such as:

• each party’s contribution to the relationship, both financial and other (such as caring for children);

• and the future needs of each party, including age, capacity to earn, caring responsibilities and health.

The asset pool consists of all property owned by the couple separating, including jointly owned and individually owned assets. For example, houses/homes, cars, boats, family trusts, inheritances, bank accounts, superannuation, shares etc.

Debts are also considered to be part of the asset pool, including mortgages, personal loans, credit cards etc.

When parties have been married, you can commence property proceedings or financial settlement any time after separation and until 12 months after your divorce has become final. You do not have to wait to be divorced to commence proceedings but once you are divorced you need to be very mindful of the time frames for finalising your settlement. The court will only permit you to commence property proceedings 12 months or more after your divorce if you can demonstrate that the delay was reasonable and the court grants you leave.

For de facto relationships, applications for property settlement can be made up to 2 years from the date of separation. As in the case of married parties, defacto couples will need to seek the leave of the court before commencing any proceedings if they miss the 2 year deadline.

There are cases where it is appropriate to separate your finances from your partner in an intact marriage. This may occur in circumstances where it is found to be “just and equitable” to do so or where the division of assets is a consequence of an agreement between the parties. This is not the case for de facto partners who must be separated before property settlement orders or applications to the court can be made.

In some circumstances, one party may be entitled to spousal maintenance payments from the other party. This is typically when there is a significant difference in the incomes or earning capacity of the separating couple, where one party is unable to adequately support themselves and the other party has capacity to provide financial support.

Applications for spousal maintenance can be made at any time during your separation and are often part of the financial settlement. After divorce, applications for spousal support must be made within 12 months.

Further information: https://www.fcfcoa.gov.au/fl/fp/spousal-maintenance