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Divorce vs property settlement: what’s the difference?

It’s understandable to feel confused by all the technicalities and terminology used in the legal space, especially if your mind is already preoccupied with your separation or divorce.

Usually, two terms many people use interchangeably are ‘property settlement’ and ‘divorce’.

Their meanings get confused because both processes involved negotiating with your former partner and seeking professional guidance from a lawyer. However, there are important differences.

To help you, let’s briefly discuss the difference between divorce and property settlement.

What is property settlement?

Property settlement refers to the division of assets and debts between parties and is usually negotiated shortly after a separation, as there are time limits imposed.

For instance, you and your partner decide to get a divorce or undergo legal separation. Either the two of you or the Court will then work on splitting your combined net assets through a property settlement process.

Married couples can apply to the Court for property settlement for up to a year after an official divorce has become final, while de facto couples can do so for up to 2 years from the date of separation.

What is a divorce, then?

A divorce is a legally recognised Order made by the Court that you are no longer married. However, a legal divorce does not deal with the division of your assets or parenting arrangements.

Keep in mind, too, that the Court isn’t concerned with whether any party may be at fault for the marriage breaking down.

To obtain a divorce, what you need to show is that you have been separated from your spouse for 12 months and 1 day and that your marriage has broken down irretrievably with no prospects of reconciling.

You can also obtain a divorce if you and your partner have separated but been living under the same roof for this time too.

How to apply for divorce in Australia

In order to apply for divorce in Australia, either you or your spouse must meet one of the following criteria:

  • Born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia)
  • An Australian citizen by grant of Australian citizenship (If so, you will need your citizenship certificate when filing your application)
  • Lawfully present in Australia and intend to continue living in Australia. (You must have been living in Australia for at least the last 12 months. In some cases, you may need to present your passport showing the date of arrival at least one year prior and/or a valid or current visa)

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