AREA OF LAW

Property Settlements

Parties of a marriage or a de facto relationship upon separation are entitled to seek to have the property of the relationship (“the property”) divided between them.

The property, otherwise defined as the pool of assets, is divided in accordance with provisions in the Family Law Act for married couples and the Family Court Act for de facto couples.

Property itself is everything imaginable and includes but is not limited to all real estate, house(s) and blocks of land, savings, shares, businesses, superannuation, cars, motorcycles, boats and caravans, and furniture, etc.

The principles in relation to dividing the pool of assets are similar for married and de facto couples with the exception being that while superannuation is included in the property pool for both couples, it is treated as an asset for married couples and as a financial resource for de facto couples. Parties should seek legal advice when superannuation is included in the property pool.

To determine what property is able to be divided the parties will first need to subtract all their liabilities from the pool of assets to ascertain the net value of the property. It is this net value of the property which is then divided.

To determine how the property is to be divided or what order should be made the Court is required to take several factors into account. Principally (but not exclusively) these include:

1. the financial contributions made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any property; and
   
2. the contributions (other than a financial contribution) made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any property; and
   
3. the contribution made by a party to the welfare of the family and any children of the relationship, including any contribution made in the capacity of homemaker or parent; and
   
4. the effect of any proposed order on the earning capacity of either party; and
   
5. the future financial needs of any party. The future financial needs are based on a number of factors including but not limited to the age, health, earning capacity of any party and whether any party has the day to day care of a child or children under the age of 18 years.

Upon determining how the property shall be divided orders can be made for such settlement or transfer of property as the Court determines.

Not all property settlements need to be determined by the Court. Parties are able to reach agreement between them and have their agreement lodged with the Family Court as Consent Orders. It is mandatory for parties to attempt to reach agreement through mediation in both property and children’s matters before commencing legal proceedings.

When parties are going through such pre-action procedures it is advisable for them to get legal advice prior to making any proposals or accepting any proposal from the other party. This is especially so as any agreement reached and accepted by the Court will ordinarily be final and binding upon the parties.

Should you need any assistance or have any questions, please do not hesitate to contact us.

See also:

Agreements Child Support Childrens Issues Court Process

De Facto Separation Divorce Parenting Plans, Parenting Orders and Family Dispute Resolution Property Settlements

Spousal Maintenance Superannuation Splitting Your Will & Separation