Property Settlement

Property settlement in family law matters generally follow a very distinct path.  The court will only make an order adjusting the legal interests in property if it is satisfied that it is “just and equitable” to make an order.  Once the court thinks that it should be involved, then it looks at the following steps:

1. Determining the pool of assets, liabilities and superannuation available – this can include the valuation of certain assets by agreed or appointed experts for properties, businesses and even superannuation.  It can also involve the adding back of assets lost by a party, for example by gambling or wasting of assets.
2. Assessing the contributions of the parties over the course of the relationship at the start, during the relationship, and also after separation up until trial, being:
   1. Financial contributions – such as the assets held at the start of the relationship, any windfalls/payments received during the relationship such as personal injury proceeds or inheritances, and anything done financially after the parties have separated but before a court decides what to do.
   2. Non-financial contributions– being contributions to improve assets like unpaid building renovations and improvements.
   3. Contributions as a homemaker – in looking after a household including looking after children.
3. Assessing the factors gathered together in Section 75(2) of the Family Law Act which make adjustments for such factors as:
   1. Age
   2. Care responsibilities for children and others
   3. Ability to earn an income, including qualifications and experience, or a lack of them
   4. Property and financial resources available to the parties
   5. Health of the parties
   6. A standard of living which is reasonable in the circumstances
   7. The wish of a parent to continue in the role of being a parent
   8. The circumstances of any new relationship where relevant
4. After looking at the above factors, the court must assess what result is achieved by the above 3 steps and then apply those findings to the assets and liabilities of the parties in deciding to how the court will make an order which is “just and equitable”.

Finding out where you stand early in a matter can help to determine what orders a court could likely make, which makes decision-making easier for you. Reaching agreement is obviously preferred, but if agreement cannot be reached promptly, then we believe you should embrace the court proceedings, as these court processes are designed to assist parties to resolve preliminary issues such as valuation and also require the parties to mediate disputes where they can. If court mediation is not successful, then you have the preliminary court steps completed, and you can push on to a trial date from there. Ask us how this can often cost less than wasting lots of money passing letters back and forth for months.