Superannuation Archives

Be Settlement Aware
As the name suggests, Property Settlement is all about settling, rather than getting your way. If you would like to make it through this process without a lengthy and costly involvement of the Court, you have to be prepared to make some concessions in order to arrive at an outcome.
Establish the Property Pool
In order to work out a fair and equitable division of property after a divorce or separation, you must establish a detailed property pool – which includes all valuable assets (including property, vehicles, , superannuation, art, bonds and savings) owned at the time of settlement. The No Lawyers platform will assist you in adding all of your assets, debts and superannuation accounts.
Consider Your Contributions
During the course of a relationship both parties contribute to their joint wealth and these contributions are taken into consideration during property settlement. There are financial contributions (i.e. income or pre-existent assets) and non-financial contributions (i.e. renovations increasing property values or parenting contributions allowing the other party to work/earn more).
Estimate Your Future Needs
Post-divorce/separation each party is likely to have different needs. Depending on parenting agreements, professional status, age, health and financial situation, the Court will decide who gets what based on their specific needs. As a rule, it will be a matter of equity over equality in order to ensure a reasonably comfortable situation for both parties.
Get Court Approval
Once both parties have worked out what they consider to be a fair division of property, you must submit all the data you’ve gathered to the Court with your Consent Order Application, which is easily created using No Lawyers. The Court will assess it in terms of justice, equity and compliance with Family Law, before returning it to you as a Sealed Consent Order, which is a legally binding document.

And don’t forget these deadlines

Matrimonial Property Settlements must be submitted within 12 months of the Divorce Order.

De Facto Property Settlements must be submitted within two years of the date of formal separation.

Have you been searching for answers regarding the “divorce property settlement time limit” or the “de facto property settlement time limit” or the “spousal maintenance time limit”?

It’s quite a common question during a separation or a divorce.

One of the most important things you must manage when undergoing a divorce or legal separation is the property settlement process. To make sure you avoid any further difficulties, it’s important to know and abide by the time limit.

You don’t want to miss having claims on your assets just because you missed the deadline required.

So, to help, here are some key points you should remember about time limits for property settlement and spousal maintenance.

What is the property settlement and spousal maintenance time limit after a divorce or separation?

If you are married, the time limit is one year after your divorce becomes final. On the other hand, if you are in a de facto relationship, the time limit is two years from the date of separation.

The property settlement process can begin any time after separation. Commencing property settlement negotiations soon after you and your partner or spouse have separated can help you finalise things without having to go to Court. It can enable each of you to work out if you can afford to adequately support yourself, now living separately, or whether you need any financial support from your former partner or spouse (spousal maintenance). It also allows property settlement proceedings to begin before the time limit ends, should you not be able to reach an agreement and opt to file for a Court application.

Handling your property settlement matters as early as possible will lessen the risk of the negotiations taking longer than you expect.

Keep in mind that when the time limit passes, you can lose your rights to seek a property settlement or payment of spousal maintenance – so it’s best to act sooner than later.

What if the time limit has already passed?

Once the time limit passes and you have not yet filed proceedings for property settlement and/or spousal maintenance, then you need to ask permission from the Court.

This pertains to the process of obtaining “the Leave of the Court” to proceed with Property Settlement or Spousal Maintenance out of the allowed time frames. Leave is usually only granted in exceptional circumstances and there are strict requirements that must be met. It’s best, then, to consult a lawyer to ensure you follow the right guidelines.

What are the grounds for obtaining leave to proceed for property settlement after the time period?

For the Court to grant you with Leave to proceed out of time for a Property Settlement or claim for Spousal Maintenance, you need to satisfy the following:

Hardship would be caused to you or a child of the relationship if leave is not granted.
You have a real probability of being successful in your property settlement claim.
Concerning claims for maintenance, at the end of the period before the time limit expired, your circumstances would have made you unable to support yourself without an income-tested pension, allowance or benefit.

When making decisions regarding granting leave to proceed out of time, the Judge will also examine these factors:

Length of the delay outside the limitation period
Reasons for the delay
Strength of the merits of your case
History of the proceedings
Conduct of the parties
Any likely prejudice and consequences to be caused to the other party or third parties if leave were to now be granted
Degree of hardship likely to be suffered if leave is not granted
Weighing up the court proceedings being allowed to proceed against the capacity of the parties to proceed with their post-separation lives free of prospective litigation

The Judge will, then, greatly consider whether granting leave will do justice or not between you and the other party. As such, it’s important to note that the onus of proof or the obligation to prove the case lies on you – the applicant party seeking to proceed out of time.

To learn more, here are examples of related legal cases.

Case 1

In Hertwig & Hertwig [2018], leave was sought by the husband to commence property settlement proceedings around four months after the limitation period. The husband had attempted to begin proceedings about two days before the limitation date expired, but encountered difficulties when filing the documents.

The husband cited it was because the wife had diverted a property (a significant asset) to a Trust entity controlled by her parents, whereas before separation, the property had been financially supporting both of them and their children.

What was the judge’s decision?

The Judge considered that if leave was not granted, the husband would lose the opportunity to seek orders in relation to the property.

Recognising the various contributions the husband made during their relationship, the Judge came to the conclusion that the wife had taken the benefit of a significant asset which financially supported both parties and their children before separation – especially because this property was the only asset in the couples’ property pool.

In this case, the parties were still to resolve parenting matters. However, the Judge granted leave for the husband to institute proceedings for a claim for property settlement.

Case 2

In Edmunds & Edmunds [2017], neither party commenced proceedings within the limitation period. The wife, then, sought leave to proceed with a property settlement application 6 years and 9 months after the time limit had expired.

The parties were married for 17 years and had 3 children, with the youngest being 17 at the time the application was made by the wife. When the parties commenced living together, the husband had an interest in 2 properties with his first wife and the wife had little assets of value. During the relationship, the wife’s parents gifted the parties $25,000 which was used towards the purchase of a property that was renovated and later sold. When the parties separated, they owned 2 properties in joint names and had superannuation. The total net value of the asset pool was around $552,000.

By the time the wife’s application for leave was before the Court, the husband’s asset position had become significantly greater than it was at the time of separation. The wife contended there was an informal agreement as to property settlement, but the husband denied this and said there was nothing formally documented.

What is the judge’s decision?

In this case, the Judge considered the following factors:

the financial and non-financial contributions of the parties
all of the evidence given by the parties
the likely percentage division if a Court was to determine a property settlement claim, in comparison to the value of the assets already retained in each party’s name
the likely costs to be incurred by each party if leave was granted and property settlement proceedings pursued
the significant prejudice to the husband in responding to the wife’s claim for property settlement, including the passage of time on the availability of documents and witnesses and his recollection of relevant matters from 25 years prior
the length of the delay, as the limitation period had expired 6 times over
the wife’s failure to take any action despite being aware of the time limit and her inadequate explanation for the delay
the wife’s actions after separation not raising a reasonable expectation she would later make a claim for property settlement

Taking all of these into account, the Judge refused to grant leave for the wife to proceed with a claim for property settlement on the basis that hardship had not been proved.

Consequently, the parties were left to reach an agreement or seek orders through State-based laws for the properties to be sold – meaning the proceeds would be divided equally as the properties were held in joint names.

If in doubt, always seek legal advice about your property settlement and spousal maintenance rights and entitlements.

Contact a lawyer from our panel of trusted partners to get the advice you need.

If you’re involved in a separation or divorce, the couple often pools their assets to be divided between the both of you.

While assets like a car or a house are simpler, your Superannuation may not be as obvious to determine or calculate. That’s because your Superannuation is an accumulated fund as a part of your salary and wage earnings over time to provide an income stream when you retire. It’s generally inaccessible until you reach 65 years of age.

So, is superannuation classed as an asset in a separation?

In nearly all circumstances, your superannuation is considered an asset which forms part of the property pool and can be divided between the separating parties.

When you separate and you begin to calculate your total assets, you have an obligation to disclose all of your superannuation funds.

How to obtain my superannuation balance

You can obtain the details and valuation information about your superannuation, or your spouse/partner’s superannuation by completing a Form 6 Superannuation Information Request and writing to the superannuation fund.

They will supply the information and amounts you need for your separation.

In some cases, the superannuation fund may not be able to provide you with a value of the fund but will instead provide the information you need to have the fund valued for the separation asset pool.

For example, many defined benefit funds such as those held with the Defence Force, Military Super or Commonwealth Superannuation Scheme (CSS) do not provide you with a valuation. However, the information they do provide will allow you to have the superannuation valued by a specialist Superannuation Valuer – this is a separate service.

However, in most cases, simply submit the Form 6 Superannuation Information Request form above.

When is superannuation not considered an asset?

There are some limited circumstances when your superannuation may be considered a financial resource, not an asset. However, in most circumstances, your superannuation interest will be considered an asset.

How do you determine what your superannuation should be?

If you are unsure if your superannuation interest should be considered an asset or a financial resource for your separation, you should seek legal advice.

Divorce or any legal separation between you and your partner is more than just parting ways. It also involves the process of calculating a fair distribution of assets and determining the responsibilities required for the children.

Property settlement is a part of the distribution of assets in a separation or divorce.

What is a property settlement?

As the name implies, property settlement is the decision around how to divide the assets and allocate the debts between you and your partner.

Property settlement can be an especially exhausting issue involving many factors. However, you can reduce or prevent conflict by following these tips:

Identify all the property you can divide

When we refer to “property”, it’s not limited to real estate. In fact, property settlement involves all assets owned by both parties (or in which they have an interest) including bank accounts, motor vehicles, boats, aircraft, shares, superannuation, pensions, contents, chattels, collectables, loans that are owed, life insurance policies, brokerage accounts and any other items that may be considered of value.

To guarantee that you’ll receive fair value when you divide any property, you may need to seek the help of a registered valuer.

Settle all issues involving dual signatures on your bank accounts

You wouldn’t want your partner to withdraw large sums of money from your joint bank account without your knowledge, particularly if this person may hide funds for their sole benefit. So, take the initiative to contact your bank or financial institution to ensure all access to your joint accounts will require both signatures – both you and your partner.

Conversely, if you are being supported financially by your partner and you do not have an income stream or other cash available to you, you may wish to consider withdrawing money from the joint bank accounts before your partner potentially arranges dual signatures to be placed on them.

Take note that you will still be accountable for this money. Withdrawing it earlier will just help you meet your immediate living costs in the event of separation. If you’re in this kind of situation, it’s best to seek help from a lawyer to find out if you could obtain spousal maintenance from your partner (which is money paid to you to meet your usual and everyday living expenses).

Arrange necessary credit limits

To prevent your partner from using money without your consent, talk to your financial institutions to cancel redraw facilities from your loan accounts. You may also wish to cancel your partner’s secondary cardholder access to credit card accounts that are in your sole name or reduce the credit card limit.

On the other hand, as with joint bank accounts, if you are being supported by your partner with no other income or cash available to you, you may consider redrawing money available from loan accounts to meet your everyday living costs before your partner cancels the redraw facility or reduces credit limits.

However, just like above, you are still accountable for this money. Withdrawing it earlier will just help you meet your immediate living costs in the event of separation.

Copy financial documents and records

Save your own copies of important files, so you’ll get a reliable perspective of your property settlement entitlements.

Some documents and reports that are important when preparing for a property settlement include:

bank statements
credit card statements
loan documents
superannuation statements
valuations
tax returns and notices of assessments
employment contracts
payslips
contracts and settlement statements for the purchase and sale of assets
any documents referring to the value of assets or debts held by each of you at the commencement of your relationship
documents relating to any inheritances, payouts or gifts received by either of you during the relationship
other financial records you may be able to locate relating to assets, liabilities, income or financial contributions made by either you or your partner

Nevertheless, if you are unable to obtain this information, you can get legal help for other possible methods of disclosure. Your lawyer can assist you by conducting searches through various online systems or issuing subpoenas.

Secure valuables, cash and sentimental items

If you are concerned about your partner removing cash, valuables or sentimental items from your marital home without your permission, you should ensure these things are placed somewhere safe. It’s also essential to secure those items you know may be sought after by both parties, so you can be certain of their whereabouts in the future.

Change the locks

Once you’ve officially separated, you can now decide to prohibit your partner from entering your property without your knowledge. For your own peace and safety, you can even change the locks.

However, this depends if it’s a joint property or not. If you’re not sure, seek legal advice as they’re technically entitled to enter if they’re a co-owner.

Handle caveats, injunctions (restraining orders) and undertakings wisely

Whether assets are in joint names, either parties’ sole name (or your partner’s name with someone else) or the name of an entity operated or controlled by your partner, property settlement arrangements take into account all assets, regardless of who is the named owner.

So, in instances where you made indirect, financial or non-financial contributions towards an asset, know that you have an equitable interest in it even though you may not be a registered owner. This means you may be able to register a caveat against real property (real estate – land, houses, units) to ensure your partner will not be able to sell, transfer, encumber or otherwise deal with the property contrary to your interests.

Similarly, you may wish to consider obtaining an injunction or restraining order and/or suitable undertaking to prevent your partner from disposing or dealing with marital assets that you have an interest in (regardless of whether these assets are in your name).

For any property settlement agreement, always remember to seek formal legal advice before taking this type of action. You wouldn’t want to be liable for damages just because your actions lack reasonable grounds.

Update your Will and Enduring Power of Attorney

If you don’t get your Will and Enduring Power of Attorney updated, your assets may pass to your partner or spouse upon your death or they may still be able to act as your attorney – regardless of your separation.

Because of this, even before your divorce is formally granted, it’s best to ask advice from a lawyer who handles Wills and Estate matters. This will ensure your Will and Enduring Power of Attorney is up to date and legally binding.

If in doubt, always seek legal advice about property settlement.

When you’re separated or divorced, there may come a point where you need to work out a property settlement between you both.

Property settlement works by dividing a couple’s combined net assets, but it’s not as simple as it seems.

To ensure that all of your assets are divided and debts allocated fairly with your former partner or spouse, the Family Law Courts considers a range of factors – from identifying which among your assets are obtained during your marriage, all the way to determining each person’s likely needs in the future.

The Court provides 4 important steps to work out your property settlement entitlements:

What is the net asset pool (assets less debts)?
What have been the financial and non-financial contributions?
What are each party’s “future needs”?
Is the division of assets “just and equitable”?

Let’s discuss them more thoroughly.

Step 1 — What is your net asset pool (property pool)?

Property settlement begins with determining your asset pool.

You need to calculate the assets and debts that are to be divided between you and your former partner or spouse. When arranging a property settlement agreement, don’t forget to take note that:

All assets are included – whether they are held in joint names, either person’s sole name or the name of a company, trust or other entity that either person has an interest in, or held by someone else on your behalf or held by you on behalf of another person, such as a child; all of these assets are included the asset pool
The Court also has the power to make Orders concerning assets held overseas and requires that you disclose overseas assets, not just assets in Australia
Assets purchased either before your relationship commenced (i.e. when you started living together, irrespective of if you later married) or after your separation are still included in the asset pool
Property settlement in Australia takes into account the value of assets and debts considered at the time of the agreement, not the separation date
Liabilities are included, irrespective of whose name they held in
Superannuation is generally included, because superannuation accounts held by either person are usually considered as an asset and can be divided in a property settlement. However, there are some circumstances where superannuation is not an asset but instead considered a financial resource. You should seek legal advice if you are unsure if the superannuation of either yourself or your partner or spouse is considered an asset or a financial resource.

Here are some examples of assets and debts that may be taken into account in your property settlement:

Assets:

Houses
Units
Land
Cars
Motorbikes
Savings/bank accounts or building society accounts
Investments
Money that is owing to you
Shares
Companies
Trusts
Businesses
Jewellery
Furniture/household contents and appliances
Artwork
Superannuation
Caravans
Trailers
Timeshare
Tools
Boats/vessels
Life insurance that can be cashed in before death – i.e., has a surrender value

Debts:

Mortgage
Overdraft
Line of credit
Personal loan
Credit card
Business loan
Motor vehicle loan
Loan/monies owing to other third parties such as a family member or friend
Taxation debts
Centrelink debts
HECS/HELP debts
Selling costs on a property or other assets such as commission, brokerage fees, auctioneer’s costs and costs to prepare a property for sale

It’s possible that you may not know your former partner or spouse’s assets and debts.

In cases like this, you can directly ask the other person for information. If the value of an asset is not agreed to by both of you, you may need to jointly instruct a professional valuer to provide a valuation.

We can refer you to one of our trusted partners who can prepare a joint registered valuation should you require.

In this step 1 of t he property settlement process, keep in mind that you and your former partner or spouse have an obligation to provide what is referred to as financial disclosure – meaning all documents and information relevant to your assets and debts, financial resources, incomes and anything otherwise relevant to your financial circumstances should be stated and disclosed upon request.

Step 2 — What have been the financial and non-financial contributions?

It is wrong to assume that financial contributions are the only things that matter in a property settlement agreement.

In fact, the Court considers every financial and non-financial contribution to your household – including contributions made when you first started living together, during the relationship and after separation.

For financial contributions, the ones you and your former partner have each provided are broken down into initial contributions, contributions during the relationship and contributions after separation. These kinds of financial contributions can include:

Assets already owned when you started living togther
Earnings over the length of the relationship
Gifts
Inheritances
Redundancies
Payouts

Post-separation contributions, on the other hand, refer to any payment you or your former partner or spouse made after the relationship had ended. These could include things such as mortgage repayments, rates and water on the former matrimonial home.

For non-financial contributions, these day to day duties ensure the household runs smoothly and are given valuable merit in a property settlement agreement:

Cooking
Cleaning
Caring for children
Bookwork
Gardening
Doing renovations
Managing finances

Step 3 — What are each party’s future needs?

Sometimes, one party may have greater needs in the future than the other. As such, the Court also considers this kind of situation when doing adjustments in the percentage split of properties.

How is this possible?

Either you or your former partner might need more support in the future due to the following reasons:

Having to handle the primary care of a child or children
Earning less income than the other
Having health concerns that require ongoing treatment or needs
Being at a much older age than the other (therefore, having less working life before retirement age to re-establish themselves)

Step 4 — Is the division of assets “just and equitable”?

The final step of property settlement evaluates if the proposed asset division is just and fair to your circumstances. However, it’s not entirely up to you to decide what’s fair or not – the Court holds that power.

The Court will begin by looking at the types of assets each party holds. Assets such as shares, properties, cars or bank accounts can be sold or converted into cash, whereas superannuation can only be accessed at retirement age. However, if you are close to retirement, your superannuation may be treated as a cash asset.

Your circumstances are unique, which is why the Court considers all important factors like contributions (both financial and non-financial) and future needs when managing the division of assets between you and your former partner.