The Family Court and Federal Magistrates Court are required under the Family Law Act 1975, to determine and adjust, each party's interests in joint and individual property.
Before the Court makes its decision, it must first consider a range of issues, including previous Court decisions. These issues include, but are not limited to the following:
- What property was brought into the relationship;
- What property was obtained / sold during the relationship; and
- What property was obtained / sold after the parties' separation.
It doesn't matter in whose name property is held i.e. individual, company or trust). Any property that was brought into the relationship may be held as more significant, as the Court is often minded to recognise that as a major contribution, as opposed to other contributions made during the relationship.
Each party must make "full and frank disclosure" of all assets and liabilities. It is a requirement of the legislation and the Court, that each party is honest and open about all financial interests. Property taken into account will include (but is not limited to) land, real estate, shares, savings, cars, insurance policies, personal possession, and investments. Superannuation is not property, but is treated as such and the Court may divide it between parties if required.
When considering the financial positions of the parties and whether an adjustment is required, the Court will take the following into consideration under section 75 and 79 of the Family Law Act 1975:
- 1.Financial Contributions i.e. the purchase, maintenance or improvement of an asset, either directly or indirectly;
- 2.Non-financial Contributions i.e. the acquisition, conservation or improvement of property, such as gardening, or landscaping.
- 3.Contributions to the welfare of the parties, such as care and support of the other or children.
- 4.Any impact upon the earning capacity of each party as a result of the order made by the Court i.e. will there be a substantial decrease / increase
in one party's earnings as a result of any order made?
- 5.A range of future considerations, including such matters as the health, age, income and earning capacity of the parties, whether there is responsibility
to support a child, and whether the Order will impact upon a party's capacity to obtain employment or carry on working.
- 6.Equity and Fairness i.e. the Court must consider whether the planned distribution of property is just and equitable.
Any application for property settlement and or spousal maintenance must be made within twelve (12) months of a Divorce Order being made. If agreement is reached, it can be formalised by either Consent Orders or a Binding Financial Agreement.
To discuss property disputes, please contact our office.