What Is The Process Of Applying For A Property Settlement After Divorce?

As per Section 44(3) of the Family Law Act 1975, a party to a marriage will be able to apply for orders for property settlements or maintenance if an application is filed within a year of the divorce. Statutory requirements for any de facto relationship are expressed in identical terms as per Section 44(5) of the act, but in this case, the application must be filed within two years of the separation date.

Before you look to hire a divorce lawyer for proper property settlement, you must learn about this important thing. If a party wants to file an application after the relevant time frames, they must seek leave from the court. Read the blog below to learn more about the property settlement process.

How Does An Australian Court Determine To Leave?

To determine if leave is to be granted to permit a party to start property proceedings out of time. The court must be satisfied that the hardship will be caused to the child of the relationship or the party if no leave is granted.

To evaluate the hardship, the court needs to be satisfied the following:

• The party who looks to begin property proceedings out of time would have a prima facie claim worth pursuing or a good probability of success if the proceedings were done in time.
• The costs likely to be incurred in pursuing the claim will not outweigh the benefits that the party will receive.
• After having established the above, there will be a proper explanation for the delay in beginning legal proceedings.

If any of the above elements are satisfied, the court will look at the prejudice that the respondent will suffer due to the delay.

What will Happen If Leave is Not Granted?

As per the context of Family law, to prove hardships, a party is not required to show that they are suffering from poverty. Or in great need. A rich party may still be able to show that a refusal to grant leave to institute the legal proceedings out of time will lead to hardship.

The court had once stated that” no matter what the applicant’s financial situation might be, their loss of a prospective entitlement to property that includes money or their ability to have property or financial relations of the parties resolved or adjusted might constitute a hardship.”

Is There Any Prima Facie Claim That You Can Pursue?

Before hiring property settlement lawyers, you must know that a party cannot establish hardship if their application for property settlement is on the face of it. The Australian court will not be able to grant leave to issue proceedings that are out of time if a party that is filing an application for property settlement has no real chance of success.

When a court makes its assessment, it does not properly analyse the merits of every party’s case as it will in a final hearing. Instead, the court will examine whether a case needs to be heard.

Is There Any Proper Or Sufficient Explanation For The Delay?

To be able to establish hardship, an applicant must take into account the costs or potential costs that may be incurred in pursuing property settlement claims. After this, the court will evaluate if the applicant’s costs to pursue court proceedings. And can outweigh the benefits the applicant will receive from a property settlement.

How Do You Prepare For A Property Settlement?

You must know that with property settlement, it is appropriate to negotiate with the intention of a clean break with your former partner. If negotiations are unsuccessful and you must take legal steps, these steps can help you plan better for property settlement.

The Steps Are As Follows:

1. You Must Ensure That You Have Access And Security Over Your Finances

It is wise to break your joint bank accounts or other accounts after your relationship ends. During this phase, a clean break with joint accounts and shared access is important. When passing through this difficult time, you must think long-term, and this also involves deciding where you wish to live.

You can choose to call your bank and inform them of this situation; they can let you know about any kind of requirements, such as joint signatures required for withdrawals. In Australia, if two parties have set up a joint account. Both parties will be the owner of the money despite the amount each party contributed to the total. If you have a credit card and your partner also has one. You will be liable for any debt that is on the card. This is why you must stop access to shared accounts during this phase.

 2. You Must Have All Your Important Documents Ready.

Before you hire a divorce lawyer, it is important that you have all your documents ready. To make the property settlement process easier. You can organise your last five payslips, bank, and mortgage statements. Also tax returns, credit cards, and vehicle registration statements that indicate ownership of assets and liabilities. This will help make things much easier. And will make things more efficient in assessing your claim and building your case.

3. You Must Record Important Facts About Your Relationship.

You can take note of any essential dates or events pertaining to your relationship or even the facts. Creating a timeline of events can help your lawyer. You should include the dates for things such as your marriage. When you both moved in together, purchases of property, child separation, children’s birth date and many more.

You must ensure to include all the financial and non-financial contributions towards the everyday logistics and running of the house. This information can help the court properly evaluate the property settlement case.

Contact Divorce Lawyers Perth

A property settlement can be a tumultuous time in such tough times. You will require the help of the best lawyers in Perth. Contact Divorce Lawyers Perth to access the proper advice to you and help you during the case.