The relationship between divorce and a relationship property settlement is sometimes confused.
Divorce simply means the legal termination of a civil contract of marriage.
The only ground for divorce is ‘irretrievable breakdown’ which is established by at least 12 months’ continuous separation (with some allowance for ‘separation under one roof’).
The only legal reason to apply for divorce is if you want to re-marry because the Marriage Act allows Australians to be married to only one person at a time. If neither party to the marriage wants or intends to re-marry they can remain married for life but still negotiate and achieve a property settlement. Divorce is not a requirement or pre-condition for a property settlement.
Negotiating a property settlement can be done whenever it suits the parties after separation. However, if a divorce if finalized before a property settlement is achieved, court proceedings must be commenced within 12 months of the divorce; unless both parties consent otherwise.
Often parties to a marriage (or non-married partners) can agree between themselves how they want to divide their property but it is preferable to finalise the relationship ‘once and for all’ so that there is no ‘second bite of the cherry’ later. This can be achieved either by a Binding Financial Agreement or by Court Consent Orders whereby the ‘agreement’ is enshrined as a court order which is sealed by the court.
Both procedures require both parties to obtain independent legal advice to be legally effective as final.