After separation from a marriage or a de facto relationship, one of the primary considerations a party will have is how to split their property or property settlement.
What is property?
The Family Law Act 1975, defines property, in a Family Law context as:
“a) in relation to the parties to a marriage or either of them–means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or
(b) in relation to the parties to a de facto relationship or either of them–means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
In simple terms, this means whether in a marriage or a de facto relationship any property whether; real property (such as a house), chattel (such as a car), money in the bank or superannuation which a party to the relationship maybe entitled or is in possession of.
What are my options about property settlement?
Parties are always encouraged after separation to attempt to reach an agreement amongst themselves in relation to property settlement, this will always save parties a lot of time and legal costs. This can be done between yourself (through lawyers or otheries) or through the use of Alternative Dispute Resolution methods such as Mediation.
If you do reach an agreement with your partner about your property settlement, this can be given legal effect through a Biding Financial Agreement or court made Consent Orders.
If you are unable to reach an agreement with your partner and have complied with all your obligations including your obligation of full and frank financial disclosure (which is ongoing), you can take your dispute to the Family Court, now known as Federal Circuit and Family Court of Australia for the court to determine according to law.
What can the Family Court do?
Under section 79 of the Family Law Act 1975, in the case of married couple, or section 90SM, in the case of a de facto relationship, the court can make orders “altering the interests of the parties to the marriage in the property.”
The first step the court usually takes is to look at the current ownership of the property and determine whether it is just and equitable to alter the ownership of the property as well as any liabilities.
The second step the court usually takes is to determine the total net value of the property (the property pool) whether such property is held jointly or individually by the parties.
The third step the court usually takes, after determining the asset pool, is an assessment of each party’s contribution to the date of hearing (including following separation).
The contributions the court consider can be categories as follows:
a. Financial contributions;
b. Non-financial contributions; and
c. Contributions a party makes for the welfare of the family, including contribution as a homemaker.
The fourth step the court usually takes is an assessment of future events that may have a financial impact on either of the parties. These factors are set out in section 75 of the Family Law Act 1975 and include; the age and health of each party, their income, financial resources and earning capacity.
The court usually then first expresses the entitlement of each party as a percentage of the net assets and then allocates the assets according to that finding.
How can we help?
Navigating the complexity of the Family Law system in so far as it relates to property can be overwhelming.
A knowledgeable and impassioned legal team can assist you in navigating the complexity of the system including assisting you assessing the true value of your asset pool, assisting you in understanding and complying with your obligations as a party to a family law matter, negotiating, drafting legal documents, and attending court if required on your behalf. Most importantly, the right legal team can assist you in attempting achieving the most just and equitable outcome in your case.
Disclaimer: This is commentary published by Olympus Law Partners Pty Ltd is for general information purposes only. This should not be relied on as specific legal advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal. The content also is subject to change.
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