Separation or Divorce - When should you split the assets?

Expert Opinion Panel
Sarah Bastian-Jordan – Family law lawyer

Separation or Divorce –
When should you split the assets?

Sarah Bastian-Jordan | 10 December 2013

When is the best time to divide the assets of a relationship?

In short – it depends on your circumstances…”

If you have been married or in a de facto relationship, you (or your former partner) may have a right to seek an adjustment or division of assets held by the other person or held in joint names.

If you have been married and become divorced, then you will lose your right to make a claim if you haven’t done so within 12 months of the divorce. Similarly, if you have been in a de facto relationship, you will lose your right to an adjustment if you have not made a claim within 2 years of separation.

Many married couples who separate do not immediately go on to divorce (therefore there is no time limit), so there is wider scope to consider the best time to make a claim for a property division.

The timing of the division is relevant because the split is determined on the nature and value of the pool of assets that are available at the time the division occurs – not, as some may expect, at the time the parties separate. This means that whilst assets may have had a value of $500,000 at the time of separation, if they are worth $600,000 a year later, then it is this higher value that is taken into consideration when the division is determined. It also works the opposite way – if the assets devalue after separation then it is the lower value that is taken into consideration. This principle applies not only to market variations in the value of assets which existed at separation, but also means that new assets which are acquired after separation fall into the ‘pool’ of property available for division, and vice versa; if assets are lost after separation then (subject to some exceptions) it is only the remaining assets which are considered for division.

The optimal time to divide the assets will depend upon the circumstances of the relationship. Some examples follow

If person A had been in a relationship characterized by person B’s habitual gambling, then it would be in person A’s interest to finalise a property division as soon as possible so as to limit the risk of asset losses as a result of person B’s gambling.
If person A had been in a relationship where person B was a successful property developer and a development project was underway and due for completion and realization in 24 months time, then it would probably be in person A’s interests to defer a claim until after the project had been finalized and the capital return had been received (ie: the pool of property was larger).
If person A wanted to retain the parties’ former house as part of the settlement, and the market was at a low, it would probably be in person A’s interest to pursue a division as soon as possible so as to receive the house at the lowest value in the settlement.
If the bulk of the valuable assets of the relationship were already registered in person A’s name (and therefore person A was not going to make a claim for more) it would probably be in person A’s interests to file for divorce as soon as possible so that person B’s ability to claim was limited in time to 12 months after the divorce (and therefore changes in the nature and value of the pool were also minimized).

The above is intended as general advice only. If you are considering a property division, independent legal advice will take your particular circumstances into account to assist you in determining the optimal time to pursue a claim.

Sarah Bastian-Jordan
LLB (UQ)
Senior Associate, Phillips Family Law

Sarah is a Senior Associate with Phillips Family Law. She has over 10 years’ experience and practises exclusively in family law. Although practising across a broad range of family law areas (property, children, international abduction) she has particular high-level expertise in complex property disputes. She is a professional member of the Family Law Practitioners Association (FLPA), the Law Council of Australia and the Queensland Law Society…go to Sarah Bastian-Jordan’s profile page