The principles in relation to dividing the pool of assets and liabilities are similar for married and de facto couples, with the exception being that while superannuation is usually 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. In Western Australia, there cannot be superannuation splitting orders made in the Family Court for de facto couples. See us regarding your particular circumstances and learn how the Family Court is likely to deal with your property settlement, including superannuation entitlements, based upon the facts of your case.
The Family Court has very wide powers in relation to altering the property interests of parties but will only make orders if it is just and equitable to do so.
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:
- the financial contributions made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any property;
- 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;
- 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;
- the effect of any proposed order on the earning capacity of either party;
- 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 is to 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 encouraged to attempt to reach an agreement, with legal advice, to assist in this process and have their agreement drafted and lodged in the Family Court seeking Consent Orders. Save for exceptional circumstances, it is mandatory for parties to attempt to resolve all issues in dispute, through pre-action procedures in both property and children’s matters, before commencing legal proceedings.
When parties are going through such pre-action procedures, it is advisable 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.
Certain time limits apply in relation to applying for property settlement orders in the Family Court, so parties should see our specialist family law lawyers for legal advice as soon as possible to ensure that they are fully aware of any time limits that apply to their particular case.
Should you need any assistance or have any questions, please do not hesitate to contact us