The short answer is ‘not necessarily’.
Separating from your spouse/partner is always a very difficult and distressing time. Many decisions have to be made. If you have children, you must work out the future care arrangements for them. If you have property, it must be divided after separation. Sometimes the period of time that has elapsed before you are ready to deal with these aspects, is lengthy and that is understandable, given that it is a stressful time. You may have to find alternative accommodation, change children’s schools, think about child support issues and so on. What is action is required is different for all families, because all families are unique and have specific needs.
Most people assume that assets, accumulated or that have accumulated post separation or after divorce should not be able to be claimed by their former spouse/partner. However, a claim by your former spouse/partner may be possible.
If you have separated or divorced, you should do all things necessary to finalise the property issues. If you have not had a formal property settlement; that is an agreement between you and your former spouse/partner as to the division of the matrimonial assets that has been approved by the Federal Circuit & Family Court of Australia, then you have not had a property settlement. Your former spouse/partner may be able to claim against you for assets you have accumulated after separation or divorce or for assets that have increased in value, post separation or divorce.
This can include things such as increases in:
- savings,
- superannuation
- purchase of property – house, motor vehicle, boat and so on,
- inheritance and
- lottery winnings.
Agreement between the parties
Agreement between the parties is best. This saves costs and reduces the stress that is often associated with family law proceedings. It also means that an agreement reached by the parties, made formal by way of Consent Orders, cannot easily be undone, pursuant to the rule in Rice v Asplund, unless a party failed to make full disclosure of their assets.
Time Limits
Divorce: 12 months from the date of divorce to initiate property settlement proceedings.
DeFacto: 2 years is the general rule.
If a party wants to commence property settlement proceedings after these time periods, an application to the Federal Circuit & Family Court of Australia, seeking consent to file out of time is required. This is an additional cost that does not need to be incurred.
Matthews Lawyers are experienced in family law matters and are able to assist. Call 0401 269 091 to speak to one of our Solicitors.