A common misconception that I frequently come across is that people believe that they need to get divorced prior to sorting out their property rights.
Not only is this incorrect, but it can often be dangerous to delay sorting out your property entitlements whilst you wait for a divorce.
“Divorce” is simply the act of getting ‘unmarried’. To get divorced, the only thing that you need to prove is that you have regarded the marriage as irreconcilably broken down for at least 12 months. Divorce, of itself, has no bearing on your property entitlements.
Sorting out your property entitlements – a “property settlement” – is in fact normally, and best, done well prior to the time elapsing for you to obtain a divorce. If you delay sorting out a property settlement after you have separated, there is significant potential for your rights to be negatively affected. For example, assets can go up or down in value, you may obtain further assets that become ‘at risk’ in a subsequent property settlement, whether that be by way of acquiring them, being gifted them, or inheriting them, your spouse may incur further debt, and even you and your respective spouses’ states of health may change having a significant impact on your property entitlements. Accordingly, once your relationship has ended, it is good legal advice to proceed with a final property settlement immediately.
The only effect that divorce has on your property settlement entitlements is that theoretically, if you wish to approach the Court for property settlement orders, you must do so at the latest within 12 months of your divorce being obtained. Failure to do so is not necessarily fatal, however, as in some circumstances the Court can grant an extension of time.
Not only is it good legal advice to get your property settlement organised promptly, it is good practical advice. Until you draw a line under your financial entanglements with your former spouse, you cannot really move on.