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Home | Family Law | Property Settlements

Time Limits

There is no ‘waiting time’ for commencing proceedings for property settlement or for entering into an agreement dividing the property between partners. Accordingly, a couple does not have to be divorced or even separated before resolving their property disputes. If you are divorced, there is a time limit of 1 year after the divorce order takes effect. In de facto property relationship matters, the time limitation is 2 years after separation.

As well as contributions, the court looks at a whole range of factors that focus on the parties’ present and future needs.

Division of Property

The Court follows a four-step process in resolving property disputes. Firstly, the Court identifies and values the net property (including superannuation) of the parties (in other words, all property of the parties after debts have been taken into account). Next the Court considers the contributions that each party has made to that property. Thirdly, the Court examines the parties’ present and future needs and finally the Court will  make an order that is just and equitable in all the circumstances.

FAQ

What are contributions?

Determining Contributions

In examining contributions, the Court looks at three things:

  • The direct and indirect financial contributions the parties have made to the acquisition, conservation or improvement of the property;
  • The direct and indirect non-financial contributions the parties have made to the acquisition, conservation or improvement of the property; and
  • The contributions made to the welfare of the family, including in the capacity of homemaker or parent.

Disclosure of financial information

Disclosure of Financial Information

There are stringent rules that apply to the disclosure of parties’ financial affairs, and which generally require that parties make full and frank disclosure of all of their financial interests before proceedings are commenced. The Court expects that parties will seriously embark on this process of sharing complete and accurate financial information at an early stage. If the Court believes that a party to family law proceedings has concealed assets or income, the Court can impose harsh penalties, including making orders that give the lion’s share of the property that the Court knows about to the other party.

Does the court look at present and future needs?

Does the court look at present and future needs?

Yes. As well as contributions, the Court looks at a whole range of factors that focus on the parties’ present and future needs. Issues such as health, carer responsibilities and comparative earning capacities are relevant considerations. These issues are considered and may form the basis of an adjustment to be added to a party’s overall percentage-based entitlement to property of the relationship.

Urgent orders in property matters

Urgency

Just as the Court has powers to deal with urgent issues concerning children, it also has extensive powers to make urgent orders in relation to property, particularly where there is a risk that property of the relationship might be sold, concealed or dissipated. These powers include:

  • The power to stop a party from disposing or otherwise dealing with property;
  • The power to compel one party to continue to make mortgage payments;
  • The power to compel the sale of a property (for example, if one party will not cooperate with a sale, but also refuses to pay the mortgage, thus placing the parties at risk of a mortgagee repossession);
  • The power to exclude one party from the home, particularly where there is a risk of family violence;
  • The power to compel one party to pay urgent spousal maintenance to the other.

Apart from these Court-based remedies, it is also possible for a party  concerned that real estate might be disposed of, to lodge a caveat preventing the sale of that property. Because caveats do not have the status of Court orders, the person lodging a caveat can be compelled to remove it by an administrative process allowed for by the Department of Lands. Nevertheless, a caveat can provide some useful breathing space while you consider whether or not to seek the assistance of the Court.

What is a consent order?

Consent orders

In many circumstances parties are able to reach agreement about the way they want to divide their property after separation.

This agreement can be formalised by filing an Application for Consent Orders with the Family Court of Australia. Once the Court makes the Consent Order, it is binding and enforceable. Having an order of the Court made pursuant to the Family Law Act provides the advantage of certain exemptions including stamp duty on the transfer of property (e.g houses and investment properties) or motor vehicles and Capital Gains Tax (CGT) exemptions on the transfer of investment properties, shares, interests in business between spouses or parties to a de facto relationship.

Call 13 43 63 to speak with one of our family law experts in New South Wales. Our offices are in Sydney, Parramatta, Campbelltown, Newcastle, Penrith, Wollongong and Gloucester.

Must I be divorced before I can effect a property settlement?

Must I be divorced before I can effect a property settlement?

You do not need to be divorced prior to finalizing arrangements about the division of the matrimonial assets or resources and liabilities. It is important to remember that there is a one year limit from the date your Divorce Order becomes absolute within which to commence Court proceedings seeking property division and/or spouse maintenance Orders.

How does a Court determine a property settlement?

How does a Court determine a property settlement?

Contrary to popular belief, the process that the Court uses to determine a family law property settlement is not a “mathematical” one. There is no starting point of 50/50. Each relationship is unique. The Court has a wide discretion in making property settlement orders and consequently, outcomes can vary considerably.

The Court, if required to determine a matter, will look at a number of factors in assessing what is a fair adjustment of property interests:

  1. The Court must decide if it would be just and equitable to adjust or change the parties’ current legal ownership of assets.
  2. The Court must determine what the asset pool is. What are the parties' joint and individual assets, liabilities and superannuation interests. This is known as the "asset pool". It is imperative that the court is aware of what it is dividing before it starts the process of determining who should get what..
  3. There is no community of property in Australian Family Law. Your entitlement to matrimonial assets is based on your contribution to the asset pool. Your contribution may have been financial, non financial such as using your skills as a carpenter to improve a property, or decorating a house to make it more appealing at sale, or your contribution may have been made as a parent or homemaker which allowed your spouse or partner to earn the income that paid the mortgage. Each party’s contribution will ultimately be assessed as a percentage or a range of percentages.
  4. The court will look at the "future needs" of each party and may make a further adjustment to the percentage arrived at in step 3. The list of factors in Section 75(2) of the Family Law Act 1975 are extensive but include:
    1. the age and state of health of each of the parties;
    2. the income earning capacity or discrepancy between the parties;
    3. the length of the relationship and its effect on each of the parties earning capacities; and
    4. who will have the primary care of the children into the future
  5. For the Court to “step back” and assess whether the percentage or division achieved by application of the above 4 steps is appropriate or “just and equitable” in the circumstances.

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