Property Settlements After Long Separations
Property Settlements After Long Separations: What You Need to Know
If you’ve been separated for years without finalising your property settlement, you may be wondering: is it too late to sort this out? Many couples focus on parenting arrangements, new living situations, or simply moving on with life, leaving financial matters unresolved. But under Australian family law, property settlements remain critically important—even after long separations.
This guide explains how the courts handle delayed settlements, what time limits apply, how property pools are assessed years after separation, and the steps you can take to protect your interests.
Why Property Settlements Can Be Delayed
- There are many reasons why couples leave property matters unresolved for years after separation. You may:
- Believe that informal agreements are “enough” without legal orders.
- Think that because you each moved on financially, there’s no need to formalise a settlement.
- Worry about legal costs or conflict.
- Assume time limits prevent you from applying.
- Simply feel overwhelmed by other issues, such as parenting arrangements, relocation, or health.
- While these reasons are common, the risks of waiting too long can be significant. Property acquired after separation may still form part of the divisible pool, and contributions can be reassessed years later.
Reviews
Time Limits in Property Settlements
- In Australia, there are statutory time limits for applying to the Federal Circuit and Family Court:
- Married couples: You must file within 12 months of a divorce becoming final.
- De facto couples: You must file within 2 years of separation.
- If you are outside these limits, you can still apply, but you must seek leave of the court (permission). Courts may grant leave if hardship would be caused to you or a child if the application were refused.
How Courts View Long Separations
Even after long separations, the court’s guiding principle remains achieving a just and equitable outcome. But the passage of time raises unique considerations:
- Post-separation contributions: Courts will assess financial and non-financial contributions made after separation. If one party significantly increased their wealth or paid off debts while the other did not, this may be taken into account.
- Asset growth or decline: Property values can rise or fall significantly over time. The court looks at the current value of the pool, not the value at the date of separation.
- New relationships and families: If either party has re-partnered, had children, or blended finances, this can affect how needs and contributions are assessed.
- Informal agreements: Even if you reached a “handshake deal” years ago, the court is not bound by it if it was never formalised.
Challenges in Settling After Long Separations
Asset Tracing
After many years, it can be difficult to identify and value assets. Records may be missing, businesses may have dissolved, and properties may have been sold. Courts may require forensic accountants to reconstruct asset histories.
Disputes About Contributions
One party may argue that because they built wealth independently after separation, those assets should not be shared. The other may argue that earlier contributions enabled that wealth to be built. Courts carefully examine the timeline of contributions.
Superannuation and Retirement
If years have passed, one or both parties may be close to retirement. Superannuation splitting becomes particularly important, and courts may adjust outcomes to reflect long-term financial security.
Emotional Strain
Revisiting financial disputes years later can reopen wounds. For many, this delay makes settlement harder to negotiate amicably.
Case Law Examples
Bevan v Bevan (2013)
The Full Court of the Family Court emphasised that a property settlement must be “just and equitable” before the court can make an order. In long separations, the court may decide that a settlement is unnecessary if both parties have long since moved on and there is no longer a joint property pool to divide.
Kowaliw v Kowaliw (1981)
This case established principles around reckless or wasteful conduct. If one party wasted or diminished assets after separation—such as through gambling or risky investments—the court can notionally “add back” those losses to prevent unfair outcomes.
Stanford v Stanford (2012)
The High Court reinforced that it is not enough simply to divide assets mechanically—the court must consider whether making an order is truly necessary to achieve justice. This principle is especially relevant in cases where parties have lived apart for many years.
Practical Steps If You’re Facing a Long-Delayed Settlement
1. Seek Legal Advice Early
Don’t assume that too much time has passed. Family lawyers regularly assist clients who have been separated for a long time. An early assessment will clarify your options, rights, and risks.
2. Gather Documentation
Start collecting bank records, property deeds, super statements, and tax returns. Even if incomplete, these records help reconstruct the property pool.
3. Be Transparent About Current Assets
Disclosure obligations apply no matter how long you’ve been separated. Both parties must provide full and frank disclosure of current financial circumstances.
4. Explore Mediation or Negotiation
Court proceedings can be costly and lengthy. Mediation offers a way to resolve disputes privately, even after years of separation.
5. Be Realistic About Outcomes
Courts focus on fairness. If your former partner built substantial assets long after separation without your involvement, the settlement may reflect that.
Hypothetical Scenarios
Scenario 1: Long Separation with New Assets
You separated 10 years ago, and your ex has since built a thriving business. The court may decide that while the business is included in the pool, their post-separation contributions entitle them to retain a larger share.
Scenario 2: Informal Agreement Disputed
You and your ex agreed informally to split property years ago, but never formalised it. Years later, they claim more. The court will not necessarily uphold the handshake deal, especially if it leaves one party disadvantaged.
Scenario 3: Post-Separation Waste
Your former partner spent large sums gambling after the separation. The court may apply Kowaliw principles, notionally adding back wasted assets to the pool to prevent your share being unfairly reduced.
FAQs About Property Settlements After Long Separations
Conclusion: Don’t Delay Any Longer
Property settlements after long separations are possible—and in many cases, necessary—to secure financial closure and certainty. The law allows courts to consider post-separation contributions, changes in wealth, and fairness overall.
If you’re in this position, the best step you can take is to act now. Seek legal advice, gather records, and begin the process of formalising a fair division of assets. The longer you wait, the more complicated matters may become.