A property application is a written application filed in court to seek orders that, for example, the house be sold and that a percentage of the proceeds of the sale be paid to you.
Whatever it is that you request of the court is set out in that document.
However, before you get to that stage, there is a requirement under the Act that parties comply with what are called pre-application procedures. These procedures involve full disclosure by both parties of all the assets they have, such as real estate, motor vehicles, boats, investment properties, shares and superannuation. Property is everything the couple owns and all these things need to be properly disclosed.
Part of the documentation filed in court will be a document that certifies that those disclosures have been made to the other side, and that the parties have been involved in genuine attempts to try and resolve the matter before proceeding to court.
There are time limitations in relation to applications for property.
For a married couple, the limitation period does not commence until they become divorced. If they never seek to divorce, the time limit will never start to run. If they are divorced, they must apply for property orders within 12 months of the granting of divorce. If not, they must seek permission from the court to bring their application out-of-time, and it cannot always be guaranteed that they would succeed in having the time limit extended.
For defacto couples, the time limit starts from the time when they separate from each other, and they have two years to make an application to the court. However, in essence, it is a two-year separation for both married and defacto couples. married couples have the added advantage that the time limit does not commence until they’ve been divorced for 12 months.
What about same sex relationships?
Same sex relationships are also dealt with in the same way as defacto relationships and marriages, that is, the same issues around children and property apply.
What if the total asset base is in debt versus profit?
You can sometimes find yourself in debt. For example, floods or cyclones could hit and a property that was purchased for $680,000 is now reduced to $440,000. This would be a negative equity situation that would need to be dealt with and split that way.
The parties are entitled to the net assets if they’re in surplus. However, they’re also obligated in relation to any matrimonial debts that arise. If, in effect, they are insolvent and their debts are more than their assets, then the argument will be, “What is their respective liability in relation to those debts?”
Superannuation, sole property, joint property - how complicated is it
It can become very complicated. Time and effort needs to go into finding out what all the assets are, and getting a complete history of the financial relationship of the parties. Looking at future needs, particularly one party who has the ongoing care of children, takes time.
Statistically, 90 per cent of all matters settle and only 10 per cent of matters go to court. Solicitors actually play a very important role in gathering the information together and giving people a range of possible outcomes; however, they cannot say that, “This is definitely what your result will be if you go to court”.
What we do is give people a range of possible outcomes. Goodwill on both sides goes a long way. Most lawyers are experienced and expert enough to know from previous cases what the likely outcome of a matter would be if it did go to court, so the negotiations are around somewhere between the lower range and the upper range. Hopefully, parties will meet somewhere in the middle.
It doesn’t have to go to court
The ideal and most effective way is to strive for resolution. Court is the last resort. When family law matters go to court, and the court makes a ruling, it can ask one party to pay the costs of the other party.
However, when matters do go to court, the court is structured in such a way that it can try and force the parties into situations where they negotiate.