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Family Law: Property

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You should get advice as to how you can resolve your property matters. It is important that you get the right advice as to what you may be entitled to in a financial settlement. We can provide advice to you regarding all property matters and negotiate on your behalf. When you separate from your partner or spouse, your assets (and sometimes even your liabilities) need to be divided in a formal way, in what’s known as a “property settlement”. Even if you and your former partner or spouse have reached an agreement and have gone your separate ways, you need to ensure that you protect yourself from a claim by your partner or spouse later down the track.

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Family Law Property Settlement

The Process of a Property Settlement

When it comes to a property settlement there is a misconception that assets must be divided equally between husband and wife. Prior to filing an Application for Financial Orders, parties should make a genuine effort to resolve matters out of the Family Courts. The application can then be filed any time after separation but should be within 12 months of a divorce and property settlements may be finalised prior to getting a divorce. The Family Law Act sets out the factors the Court takes into consideration when deciding on a property division.

What is included in a property settlement?

Identify Assets, Liabilities and Financial Resources: The items of the asset pool that are either jointly or solely owned by each party will be taken into consideration in all family law matters. Each asset will need to have a value attributed to it, or in circumstances where it is difficult to do so, a professional valuer will most likely need to be engaged to perform an assessment.

Identify any Contributions made by the Parties: The contributions that each party has made will need to taken into consideration and an adjustment can be made as a result of same. These contributions include financial contributions, non-financial contributions (as a homemaker or having primary care of the children), initial contributions and any other gains or windfalls. Practical examples of this include salary, inheritances or redundancy payments.

Identify the Future Needs of the Parties: The Court must assess what if any, the future needs of the parties will be taking into account a number of factors. This can including age, health, income earning capacity, financial resources of each of the parties and the parenting arrangements and responsibilities of each of the parties. The Court then determines whether any percentage adjustment should be made in recognition of these factors.

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Questions And Answers

In the Family Court of Australia, parties intending to apply for financial orders must first attend dispute resolution before filing an application. The application can then be filed any time after separation but should be filed within 12 months of a divorce.

Despite popular opinion, there is no presumption that property should be divided 50/50. The Family Law Act 1975 sets out factors which must be taken into account when a judge is deciding on how property is to be divided. The Court will consider whether it is ‘just and equitable’ to make an order for an adjustment of property.

In dividing the assets of the marriage, the Court will consider:

– The respective contributions made by both parties – determining assets and liabilities;

– Direct financial contributions by each party to the marriage or de facto relationship;

– Indirect financial contributions by each party such as gifts and inheritances, and

– Non-financial contributions to the marriage or de facto relationship such as homemaking; and

– Future needs – the Court will take into account further matters like age, health, financial position, care of children and ability to earn.

If you agree on arrangements, you can seek to formalise your arrangements by contacting our firm to draft your Consent Orders. If you cannot reach an agreement, you can engage our lawyers to apply to the Court for Financial Orders.

Yes. During the period of separation, you may complete the property settlement before getting a divorce. You will need to sort out how to divide your assets and debts. This can be done via an agreement between yourself and your former spouse.

You may organise your family law property settlement as soon as you want after separation. A minimum period does not apply. However, due to the emotional aspect of the matter, you may choose to allow a short period of time to elapse before properly considering property division. However, a maximum time limit does apply. An application to the Court for property settlement must be filed within:

– 1 year of a Divorce becoming “absolute” for married couples;

– 2 years of separation for de facto couples. These time limits apply across all States and Territories throughout Australia.

“Liberty is the right to do what the law permits.”



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Issues that may arise in family law

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