Property settlement

What is a property settlement?

There is no right to an equal split of property after a divorce. Dividing your property will be a decision left to the courts if you and your ex-partner cannot agree and will consider each party’s contributions and needs. It will then use that information to help it decide what percentage of the property each party should receive. The court can then make a range of varying orders to support its decision, including:

  • ordering a person to pay money;
  • sell / transfer property to his/her partner;
  • split superannuation; or
  • selling and dividing the proceeds of the family home.

An experienced divorce lawyer can advise how the rules apply to your particular situation. The legal team at von Doussas can help protect your legal rights while resolving any disputes quickly and efficiently.

Time Limit for Property Settlement

There is no minimum time limit you must wait to do a property settlement. If you are a married couple, you will have one year from the date that your divorce is final or ‘absolute’ to apply to the court for a financial order. Your divorce becomes absolute when the court issues a ‘Certificate of Divorce’, typically 1 month and 1 day after the divorce hearing.  If this time limit has expired, a court may grant an extension upon receiving a ‘leave to proceed’ application. A court will consider if there is an adequate explanation for the delay and if denying your claim would cause hardship. If you were in a de facto relationship, you have two years from the date that your de facto relationship ended to apply to the court for a financial order. Like divorce, it is possible to get an extension as per the discussion above. It is important to see a divorce lawyer early as possible. This allows the lawyer to prepare property before filing documents in court and take steps to preserve property. This is the best way to increase your chance of a good outcome. To save further time, you can apply for property/financial and parenting orders in the same application. See the fact sheet Applying to the court for orders and How do I apply for parenting orders? for more information.

What Is the Difference Between ‘Joint Tenancy’ and ‘Tenants in Common’?

It is common for more than one person to buy and own property, and when this occurs, ownership over the property will exist in either of two ways: as joint tenants or as tenants in common. It is important to consider how you own property, as each type of ownership confers different legal rights upon the registered proprietor.

Joint tenancy  

Joint tenancy is a form of co-ownership in which the following principles apply:

  • There are no shares. In theory each joint tenant has the whole of the property. No party has a specific share in the property while the joint tenancy continues. This means that the joint tenants must have equal interests in the property and are equally entitled to its rents and profits. There can be two or more joint tenants.
  • The principle of ‘survivorship’ applies. On the death of one joint tenant the surviving joint tenant gets (or joint tenants get) the whole property automatically by operation of law, irrespective of any will made by the joint tenant who died, and irrespective of the intestacy rules. This is the principle of ‘survivorship’, which applies to joint tenancies. This gives considerable protection to a joint tenant.
  • It follows that property held in joint tenancy does not form part of the estate of a joint tenant who dies. This is important when deciding whether a grant of probate is needed. A grant of probate is required if the estate contains land (except in Queensland) — but this does not include property held in joint tenancy, as it does not form part of the estate. The property passes automatically, by operation of law, to the survivor or survivors without forming part of the estate of the first-dying. A grant of probate is therefore not required for transfer (to the other joint tenant or tenants) of property held by the deceased as a joint tenant. Further, a joint tenant cannot by her or his will deal with property held in joint tenancy, because the property goes automatically to the other joint tenant on the death of the testator.
  • The principle of joint tenancy applies to real as well as personal property — it applies to land as well as to property like cars, shares, furniture and bank accounts.
  • Joint tenancy is usual in marriage where the spouses want to hold the property equally and want the principle of survivorship to apply. It is not common in other situations. It would be somewhat unusual for a partner to a domestic partnership or personal relationship or even a marriage who buys a house using only her or his own money or who has contributed much more to the purchase price than the other partner to want to register the house in joint names where the interests must be equal and the purchaser
  • It is possible for a joint tenant to sever a joint tenancy.

Tenancy in common

Tenancy in common is a form of co-ownership in which property is held in common with others but where, in contrast with joint tenants, the share of a deceased tenant in common passes to her or his beneficiaries under her or his will or intestacy and does not automatically pass to the surviving tenant or tenants in common.

  • Tenants in common have fixed, undivided shares in the property. Tenants in common can have unequal shares (for example, two-thirds to one and one- third to the other).
  • The share belonging to a tenant in common becomes part of the estate of that tenant in common when he or she dies; that is, a testator who is a tenant in common can leave her or his share by will or, if there is no will, the intestacy rules apply to the share that belonged to the tenant in common. (There is no principle of survivorship for tenants in common.)
  • Tenancy in common is usual where two people purchase a property together, especially where they have contributed unequally to the purchase price: the parties can own equal or unequal shares to reflect their respective contributions, and each can deal with her or his share by will. A husband and wife who purchase a property together out of what they see as the assets of the marriage often purchase as joint tenants, but if they are in a blended family it may be more appropriate to purchase the property as tenants in common.
  • In wills, the standard form of gift, for example of residue or the estate, to the testator’s children is to the children as tenants in common.