Family Law – Property Settlement
“The nuts & bolts – and the house”
The Family Court of Australia has jurisdiction in all Australian States to make orders dissolving a marriage (divorce) and the settlement of property interests of married couples, domestic partners (de-facto relationships) including same sex couples.
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown, unlike those living in America. The only ground for divorce is that there was an irretrievable breakdown of the relationship which is demonstrated by a 12 month period of separation.
While the act of filing a divorce application is a relatively simply process, there are a few matters that you may not be aware of, which could ultimately hold up the granting of the divorce order. Speak to us about the in’s and out’s of divorce.
Be aware, that once a divorce is granted, that there is only a 12 month period to lodge an application in Court for a property settlement.
When a relationship comes to an end, the assets of the relationship must be divided. In most cases, parties are financially tied to each other, and they need assistance to financially re-establish themselves by separating the assets.
The principals of determining a property settlement for both married couples and de facto partners are the same, but the Act makes a distinction between the two types of relationships by separating them under different sections of the Act. Section VIII of the Family Law Act deals with married couples and Section VIIIAB of the Family Law Act deals with de facto relationships
The term property has a broad definition. It can include a house, car, bank accounts and furniture but also include superannuation entitlements and in some circumstances involve Family Trusts. It also includes the property brought into and purchased during the relationship.
The Court cannot make orders for the alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. What is just and equitable will vary depending on the circumstances of each individual matter. In addition, the Court, as far as practicable, is to make orders which will finalise the financial relationship between the parties.
The general principles the Courts take in assessing the just and equitability of property settlements under the Family Law Act 1975 :
1. Work out the assets and liabilities; that is, what you’ve got (including superannuation), what you owe, and what its all worth;
2. Look at the contributions made by both parties during the marriage or relationship including:
2.1 direct financial contributions to the the acquisition, conservation or improvement of any of the property, such as wage and salary earnings;
2.2 indirect financial contributions to the acquisition, conservation or improvement of any of the property, such as gifts and inheritance from families
2.3 direct non-financial contributions to the the acquisition, conservation or improvement of any of the property, such as physical work done to the home; and
2.4 contributions to the welfare of the family, including any contribution made in the capacity as parent and homemaker
3. Assess the future needs of the parties having regard to things such as age, health, care of children, income and financial resources of the parties
4. Ensure that the outcome produces a just and equitable division of the assets.
We understand that the breakdown of a relationship is an emotional and trying time for everyone involved. It can be stressful and often complicated when trying to finalise a property settlement. It is important to know we are here to support you. Contact us to see of we can help.
By Agreement.
Some couples are able to resolve property settlement amicably.
They are able to separate their own feelings about their former partner and focus on their needs, and the needs of their children, leaving any emotion and pain out of the discussion . Any agreement reached should always be formalised by way of an Application for Consent Orders filed in the Family Court of Australia for certainty.
The Orders can then be relied upon in the event either party defaults on their obligations under the terms of the Orders.
We understand that the breakdown of a relationship is an emotional and trying time for everyone involved. It can be stressful and often complicated when trying to finalise a property settlement. It is important to know we are here to support you. Contact us to see of we can help.
By Negotiated Agreement.
If you cannot agree, it is best to seek our advices as to the best way forward. Usually knowing where you stand and knowing that you are not alone in the process provides you with the clarity you require to enter into negotiations with your former partner. We can help you. Mediation is often the first step in the process, however is not a requirement as it is with children’s issues.
With the assistance of a family dispute resolution practitioner issues of concern can be aired, discussed and worked out, and a resolution achieved. Any agreement reached is not legally binding on either party and must always be formalised by way of an Application for Consent Orders filed in the Family Court of Australia for certainty. The Orders can then be relied upon in the event either party defaults on their obligations under the terms of the Orders.
We understand that the breakdown of a relationship is an emotional and trying time for everyone involved. It can be stressful and often complicated when trying to finalise a property settlement. It is important to know we are here to support you. Contact us to see of we can help.
By Court.
There are circumstances when an agreement, despite engaging in negotiation either directly or through your lawyer is unsuccessful. In these circumstances, the only way to proceed is by filing an application for property settlement before the Court. It is essentially asking a Judge to look at the circumstances and facts presented, in order for them to make a decision as to what they consider is a just and equitable division of the assets of the relationship.
An application of this nature usually seeks orders to be made on a final basis, but in some circumstances interim orders may be required in cases of spousal maintenance (where one party needs the other to provide them with financial assistance) or issues regarding use of joint bank accounts, and who is to reside in the former shared home. The interim orders are holding orders, that is, arrangements put in place until the application is listed for Trial and the Judge makes final orders and ends the Court proceedings. Despite being involved in the Court process, matters usually resolve by extensive negotiation and only rarely are matters resolved by way of Trial.
We understand that the breakdown of a relationship is an emotional and trying time for everyone involved. It can be stressful and often complicated when trying to finalise a property settlement. It is important to know we are here to support you. Contact us to see of we can help.
