Is it a good idea to go ahead with applying for divorce before a financial settlement is done?

If you are considering filing for divorce prior to completing property settlement, there are some things you should know. Please keep reading to understand why it may be more beneficial to organise your property settlement with your ex-partner before you consider filing for divorce.

The main thing to bear in mind with a divorce is that it is just the legal ending of a marriage. Property settlement is the legal division of the parties assets and liabilities.
There is usually very little which should prevent you from being to get divorced before finalising property settlement because of the different outcomes they each produce. However you do need to bear in mind that there are limitation dates or deadlines which apply to property settlement which are different depending on whether you are in a de factor relationship or were married.

The time limit is the last date upon which you can either enter into consent orders or a binding financial agreement or commence legal proceedings without having to ask for leave or permission of the Court. If the limitation date expires before doing one of those things you would have to either file orders or sign the binding financial agreement out of time with the other parties consent or file an Initiating Application and ask for permission to do so.

Filing out of time could be a costly process because if the other party objects to the Initiating Application the Court has to list it for a Threshold Hearing which is essentially a mini trial where the evidence of detriment to each party is weighed up. If you made the Application and it was declined you could potentially be ordered to pay the other parties costs of defending the Application.

For de facto relationships the time limit is two years from the date of separation. For divorced couples it is 12 months from the date the Divorce Order became effective.

So if it is not pressing or urgent to get divorced you may prefer to address property settlement first so that you have plenty of time to do so and are not forced to file the Initiating Application before the time limit expires.

If you have any further queries regarding property settlement or divorce, please don’t hesitate to contact us for advice.