Property Settlements are governed by the Family Law Act 1975 (Cth), (‘the Act’), and based on the value of the property involved, your matter will be handled by either the Family Court of Australia, or the Federal Circuit Court.
You can choose to divide your property using the following methods:
- An informal agreement;
- Binding Financial Agreement; and
- Consent Orders pursuant to section 79 of the Act.
Informal agreements can be made without the involvement of the Court.
However, both parties can file an application for a property settlement in the 12 months following the divorce. The Court may overturn the agreement if it is not deemed to be just and equitable to both parties, and if either party involved did not obtain independent legal advice.
Binding Financial Agreement:
A binding financial agreement deals with how the marital property will be dealt with, and/or, can be an agreement as to the maintenance that either spouse may receive. It is only binding on the parties if both parties have received independent legal advice prior to the agreement being signed.
Consent Orders pursuant to section 79 of the Act:
The Family Courts provide for the option to apply for Consent Orders, which are essentially financial agreements that have been formally approved by the Court.
Prior to hearing an application for Orders, the Family Court insists upon parties fulfilling ‘pre-action procedures’, including attending dispute resolution. Whilst pre-action procedures are not a requirement for an application to be heard in the Federal Circuit Court, it too, will often order that parties attend dispute resolution. It is only following pre-action procedures, that an application for consent orders may be filed.
In considering an application for Consent Orders, the Courts will generally adopt the following four-step approach:
- Value Assets:
In order to divide the property, it is first necessary to identify the property that will form part of the marital pool of assets, and to ascertain its value. The Court has defined the term ‘property’ widely, encompassing real property, as well as liabilities and financial resources. It includes, but is not limited to:
- Any properties owned;
- Cars and/or other vehicles;
- Bank accounts;
- Superannuation; and
- Liabilities, i.e. any debt.
Property owned individually, or acquired through the marriage will be considered as forming a part of the pool of assets. The Court also makes no distinction between marital and business assets.
- Value Contributions:
Then the Court considers the following:
- Direct/indirect financial contributions made to the acquisition, conservation or improvement of property;
- Direct/indirect non-financial contributions made to the acquisition, conservation or improvement of property;
- The contribution to the family as homemaker and/or parent.
Generally, the Court considers the overall contributions that each party has made to the property as a whole, and on that basis, establishing an estimate of the property division.
Contributions, both past and present are considered, and, real estate, personal property, payments for renovations or maintenance, and the domestic activities of each party to the marriage, are all relevant.
- Assess Needs:
Then the Court will assess the needs of each party and decide if spousal maintenance or child support should be paid.
In addition, the future needs of the parties are assessed based on:
- The age and health of the parties involved;
- The income and financial resources that each party has at their disposal, as well as their capacity to find future employment;
- Whether the parties have any commitments or responsibilities that are necessary to support themselves, a child, or others whom they may have a duty to maintain;
- Whether either party is eligible for any pension or allowance;
- What a reasonable standard of living would be, in the circumstances;
- Whether any maintenance payment will enable the other party to undertake education or training, or have any effect on a creditor’s ability to recover their debts;
- Protection of a party who wishes to continue their role as parent;
- Financial circumstances relating to either party living with another person;
- Any other fact or circumstance that ‘the justice of the case requires to be taken into account’.
The estimate of the property division may then be adjusted accordingly, to account for any disparities in the parties’ positions.
- Considering the Result:
An order cannot be made unless the Court deems it to be just and equitable.
It is important to note that the Courts have wide discretion in dealing with family law matters and will decide each matter on the basis of its individual facts.
The above are only a general statements and you should seek legal advice suitable to your situation. Please feel free to give Nas Hanafi of Lion Legal a call on 02 9251 2722 to discuss.