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There are many reasons why a couple should come to a property settlement arrangement sooner rather than later after they separate. One of the more compelling reasons was highlighted in a recent Full Court decision where the parties had been married for a considerable period of time but had remained separated (and not divorced) for some 9 years after the actual date of separation and prior to trial. By the time judgment was delivered in the matter some 11 years had elapsed since separation.

Separating spouses often think, as do many of their advisors, that there is some sort of line in the sand drawn at the date of separation which compels everyone to look only at the assets that existed at separation and their value. Nothing could be further from the truth.

The Court must always identify and value the items of property at the current date and consider contributions and other relevant factors from the commencement of cohabitation up until the current date.

It is therefore easy to understand that the longer one waits after separation, the more difficult the exercise of property settlement becomes. This is because contributions change substantially in nature. During the marriage each party may have made various different contributions to each other and to their common purposes but after separation they have gone their own way and done their own things for a considerable period of time.

Importantly, the Full Court has previously said that separating couples are not expected to enter some sort of suspended economic animation state after separation. The Court does not engage in a detailed forensic exercise as to what people spend money on.

There are often many reasons why parties do not want to go down the property settlement route straight away after separation. However, there are so many compelling reasons to do so that outweigh any reasons that a party may have to delay. After a relationship has broken down, it is easier to separate ones finances if they are roughly in accordance with what the parties’ finances were at separation. The chances of that occurring diminish as the years post separation increase.

There have been significant cases in the Family Court over the years where there have existed large delays post separation (sometimes upwards of 15 years) before a property settlement trial is reached. It should be no surprise that in those matters, the making of an Order that is just and equitable becomes harder because of the number of issues in dispute and the complexity of the affairs.

Not only should separating spouses look to get expert advice immediately after separation but they should also look to try to resolve their matter with some urgency. If a settlement cannot be negotiated within the first 6 – 12 months by negotiation and/or mediation then unfortunately it may be necessary to file an Application in Court so as to further attempt to bring the matter to a resolution rather than waiting for an indefinite period of time that will only complicate and make it more difficult to settle at a later date.

Written by: Brett Hartley

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