When I meet with new and recently separated clients, they often walk in and speak about needing to get a divorce. What many people don’t realise is that getting divorced is not an all-encompassing process that will deal with the range of issues they need to address in their separation.
Getting divorced is the process of bringing your legal marriage to an end. It severs your formal status as spouses, but it doesn’t actually resolve any other issues. A property settlement is an entirely different process, which brings an end to your financial relationship. You can complete your property settlement without getting divorced, and you can also get divorced without having finalised your property settlement. However, this is something we would strongly recommend against.
Getting divorced immediately, and without finalising your property settlement, can actually cause complications for any property settlement you are trying to reach. This is because getting a divorce starts a clock ticking on the time you have to seek relief from the Family Court if you can’t come to an agreement with your ex for your property division. You only have 12 months from the date your divorce becomes final to commence proceedings in Court asking for the orders you seek.
If you file after the 12 months has elapsed, you must seek leave from the Court to bring your application out of time. The Court generally only grants this leave with good reason, and won’t give you leave just because you’ve run out of time.
Twelve months may seem like plenty of time to get your property matters sorted, however, in our experience, this time can fly by very quickly when you’re going back and forth with the other side trying to reach an agreement, undertaking your required full and frank financial disclosure and attending mediation. This is particularly the case for the matters that are going to end up in Court, as by nature they’re the matters where the biggest issues and largest range of disagreement lies.
Therefore, our advice to clients is usually to at least finalise your property division before you apply for divorce. A divorce can be obtained very readily at the end of everything else.