Property and Separation (Download a pdf version of this information sheet) One of the most difficult issues to resolve when separating is the fair division of property. This usually begins around the time of separation and, in some cases, can unfortunately go on for years. It makes no difference whether you are married or living in a de facto or same sex relationship, all women are legally entitled to a fair share of the property when a relationship ends. Some women who choose freedom over money to avoid a lengthy and acrimonious dispute, forgo their entitlements ending up worse-off financially. This financial inequity may become particularly obvious in later life. Working out what you are entitled to can be a complicated and drawn out process particularly if you are unable to come to an agreement with your partner. This is why it's so important to seek legal advice so that you understand what your entitlements are. You'll then be in a better position to realistically plan for the future. Commonly held myths These are some of the most common myths about property settlement and separation. Because it's in his name, he owns the house. We're not divorced, so we can't settle our property yet. The courts usually give women everything. It's his job and his superannuation ­ I have no claim on that. Women are out to get as much as they can. If I leave then I loose my entitlement to a share of the property. De facto couples have no legal rights. The only way property can be settled is through the courts which is complex, long-winded and expensive. And the reality... Property includes all assets that are owned individually, jointly or by a family trust. If the house is in your partner's name it will still be considered part of the settlement. Married couples can apply for property settlement before they are divorced. The Family Court will weigh up the contributions made during the relationship and the future needs of both people when considering a fair division of property. Despite the myths, women do not automatically get everything. If you leave the house, you will not lose your entitlement to a share of the house or other property. If you are married superannuation is now included as part of the overall property assets. Over 95% of property disputes are settled out of court. What is property? Property can include anything of value like houses, land, cars, household items, jewellery, savings and investments, stocks and bonds, life insurance policies, businesses, family trusts, and any other assets or debts. Property can be owned individually, jointly or by a family trust or family company. Other entitlements such as long service leave, superannuation and personal injuries claims are also now considered in a property settlement. Where does superannuation fit in? In June 2001, Family Law legislation was introduced to allow separating couples to split their superannuation in the same way as other assets. This legislation will not come into effect until 28/12/02. After this date the final decision, whether made by agreement or court order, will be binding on the superannuation funds. Until these changes come into effect there are a number of approaches which can be taken. If you are in a de facto or same sex relationship, the situation is less clear. And because of this, it's a good idea to get some legal advice about your rights and options. See also WIRE information sheet Getting Legal Advice Married vs domestic partnership The act determining your property settlement will depend on whether you are married, in a same sex relationship or de facto relationship. The Family Law Act looks after couples who are married, while the Victorian Property Law Act deals with domestic partnerships (de facto couples). People in same sex relationships rely on common law principles although couples who were in a `domestic relationship' and separated after June 28, 2001 now have the same rights as de facto couples. Because these laws are complex and, for most of us, quite confusing, it's important to get as much information as possible about your rights and entitlements. See also WIRE information sheet Getting Legal Advice. Married couples Do I have to go to court? You don't necessarily have to go to court if you can work out an agreement with your partner that gives you a fair share of the property. Before you sign anything make sure you obtain independent, knowledgeable advice that the agreement is fair. If you have reached an agreement, it's also important to get it registered by the Family Court so that it is legally binding and therefore enforceable. Getting help to reach an agreement If you are finding it difficult to work out an agreement with your partner it may be worth considering using a mediator who will help you resolve your dispute outside the court system. Before using a mediator both parties should seek legal advice. However, if your partner has been violent or aggressive, you may feel uncomfortable about mediation and seek an alternative. One way is to pay a solicitor to negotiate with your partner's solicitor. For more information see the WIRE information sheet Domestic Violence. When court is the only option It can take up to two years for a property settlement case to be heard in the Family Court. If you are still married you can apply at any time or within 12 months of divorce being finalised. Before a final property hearing in the Family Court, you will be required to go to a conciliation conference to discuss the settlement with your partner, lawyers and the court registrar. Often disputes are settled by agreement which ultimately saves a great deal of time, money and distress. How is property divided? The Family Court takes into account a number of factors when deciding your fair share of the property. It considers what financial and non-financial contributions you and your partner have made during your relationship, and what you may need for the future. This can include: Income from salary or wages Age and state of health Level of child support available Eligibility for a pension Unpaid work in the home caring for children Ability to work Work done to improve your home or business New living arrangements Assets bought or used during the relationship Duration of marriage Income and financial resources, including respective superannuation entitlement Financial contributions from savings, gifts and inheritances In the end, you may receive an adjustment of property in your favour if the court believes your income and financial resources are relatively low compared to your partner's. Lawyers who help married couples sort out their property settlements outside the court system are guided by these general factors. Before seeking legal advice make sure you have everything you need to avoid unnecessary delays and expense. Prepare a list of your sole and joint property and contributions, and get any relevant paperwork together. De facto relationships In Victoria, property disputes in de facto relationships are settled under the Victorian Property Law Act in either the Supreme Court or County Court depending on the size of the combined assets. Generally, you must be able to prove that you have lived together for at least two years, and will also need to apply to have your case heard within two years of separation. Legal advice is particularly important so that you know exactly what you are entitled to and how you go about ensuring you receive your fair share. Agreements about property settlement Like married couples, if you are able to work out how your property will be divided outside of the court system, you can have your written agreement registered by the court which then makes it legally enforceable. Complications to look out for Debts If you and your partner have joint debts, these should ideally be worked out at the time of settlement. Because even if you haven't benefited from borrowing the money, you may still be liable for half or even all of the debt. If, however, the loan was contracted unfairly there may be something you can do. For more information see the WIRE information sheet Women & Debt. Spousal maintenance If you were married and can prove that you are unable to support yourself, and your partner has the capacity to meet your needs, you may be able to claim spousal maintenance. This can be negotiated at the time of property settlement or, if you are unable to agree, the Family Court can make a maintenance order. As many women receive a lump sum payment as part of their property settlement, it's a good idea to make sure this won't affect your right to a pension or benefit. Selling the house If you think your partner may try to sell your house before you have worked out a property settlement, you should apply for an urgent property order from the court or ask a solicitor to place a caveat on the title. Avoiding difficulties Dividing up property can be a complex and difficult process particularly if you are unable to come to an agreement outside the court system. However there are some practical things you can do to minimise potential difficulties while at the same time ensuring you receive a fair share of the property. Buy assets in both names, particularly your family home. Make sure debts are not in your name only. Ensure that debts which only benefit your partner are not in your name. Make sure you have copies of all your financial records. Seek legal advice early on so that you know exactly what your rights and entitlements are. Getting legal advice For information about your legal options including crimes compensation and intervention orders see WIRE information sheet Getting Legal Advice. Where do I go for help? WIRE Community legal centres Counselling services Family Court Legal-on-line Self-help and mutual support groups Victorian County Court and Supreme Court Victoria Legal Aid Relationship and mediation services Women's Legal Service Victoria Police Contact WIRE For an up-to-date contact list of the services available: Phone 1300 134 130 for the cost of a local call, or 13 36 77 (National Relay Service for hearing impaired women) Drop in to the Women's Information Centre on the Ground Floor, Queen Victoria Women's Centre, 210 Lonsdale St, Melbourne Email us at inforequests@wire.org.au Visit our website www.wire.org.au References You & Family Law, Victoria Legal Aid, 2000 Property Settlement ­ Dividing property after separation, Women's Infolink Info Sheet 3, Department of Premier and Cabinet, Queensland Government, 2001 Australian Bureau of Statistics, Australian Social Trends, 1999 Vichansard Victorian Parliamentary Hansard, Parliament of Victoria website www.parliament.vic.gov.au The production of these sheets was made possible with a grant from the Law Foundation. Every effort has been made to ensure the information contained in this sheet is accurate and current at the time of printing. However, no responsibility will be taken for the accuracy or reliability of the information, or for any loss which may arise from errors, omissions, or changes to government policy or the law.

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