Property Settlement

Property settlement involves parties to the marriage agreeing to or the court making orders that would divide the parties’ assets between them.

Whilst parties have to wait twelve (12) months from the time that they separate until they can apply for their divorce, they can resolve property matters between them or make an application to the court in relation to property settlement immediately following their separation.

It is important to note that once you have made an application for divorce and obtained the divorce order, you will only have twelve (12) months from that time to make an application for property settlement with the Court.

For the purpose of the property settlement, all of the parties’ property, including real property (e.g. matrimonial home or investment property), personal property (e.g. cash, shares or motor vehicles), income, life insurance and superannuation will be considered for the purpose of the property settlement.

It is a common practice for parties to engage in negotiation (both formally and informally), usually through their respective lawyers, to resolve the property matters by agreement. It is ideal to resolve the property matter through negotiation as opposed to resorting to the Court, as it would be quicker, cheaper and less stressful.

Our family law specialists are experienced in alternate dispute resolutions and can assist you in achieving the best outcome through negotiation and mediation.

When all avenues of compromise and negotiation are exhausted, the parties (either side) can make an application to the Federal Magistrates Courts or Family Courts for orders relating to the property settlement.

In determining the manner in which the property should be divided between the parties the Court is required to consider what is “just and equitable” in the circumstances.

Some of the specific consideration includes:

1. Financial Contributions (direct or indirect)
   1. Direct Financial Contributions – e.g. income earned and mortgage repayments
   2. Indirect Financial Contributions- e.g. Gifts or inheritances
2. Non-Financial Contributions (direct or indirect)
   1. Direct Non-Financial Contributions – e.g. Repairs and renovations
   2. Indirect Non-Financial Contributions – e.g. Care of children by one party which enabled the career advancement of the other party
3. Future Needs – there are a number of factors that the court may take into consideration when adjusting the property entitlement based on the future needs of the parties. This may include (not exhaustive):
   • Your income, property and financial resources, and your physical and mental capacity for appropriate gainful employment;
   • Whether each of you have the care and control of a child of the marriage who has not yet attained 18 years of age;
   • Responsibilities of either of you to support any other person;
   • The standard of living and whether in all the circumstances this standard is reasonable;
   • The duration of the marriage and its effect on the earning capacity of either of you;
   • The need to protect the party who wishes to continue the role as a parent;
   • Any facts or circumstances which the justice of the case, in the opinion of the Court, requires to be taken into account.

Our family law specialist can assist by obtaining details from you about your contributions and will be able to advise you of your likely entitlements.

The High Court has rejected the Family Court’s earlier approach that equality is the “starting point”. Each case must be decided on its own set of circumstances and due consideration given to Sections within the Family Law Act as summarised above, being an evaluation of the parties’ respective financial and other contributions.

It may also be appropriate for there to be a further adjustment having regard to the provisions of Section 75(2).