Author: Vanessa Mathews

Property divisions are based on the contributions made by each party to the relationship.

In a short relationship, each party will tend to leave the relationship with what they brought to the relationship.

In a long relationship, the ongoing contributions made throughout the relationship are seen to decrease the significance any financial contributions made at the beginning of the relationship by an individual party. The continuing financial and non-financial contributions made by both parties to the relationship tend to erode the ability for any particular asset to continue being owned exclusively by one party or the other.

If your relationship led to you spending time out of the paid workforce and you were contributing to the relationship by caring for children or performing domestic tasks, then you have no need to feel disadvantaged. A property settlement takes into account both financial and non-financial contributions made by each party in the relationship.

The Family Law Act recognises that many relationships operate so that one party takes time out of the paid workforce in order to perform domestic tasks or care for children. These contributions are for the most part considered equal to the financial contributions.

Sometimes both parties continue in the paid workforce, but one party may perform the majority of the domestic tasks. This contribution will also be considered in property settlements.

If you cannot reach an agreement with your former partner then an application for property settlement must be filed. There are ongoing opportunities to settle proceedings before a decision is made by the Court. Where a settlement is not reached then the Court will make a decision as to how the property of the couple should be divided after a hearing. If the property is complex then the Family Court will hear the matter.

Parties are often able to reach an agreement about a property settlement with the help of their lawyers. Where parties reach an agreement they can apply to the Court for Consent Orders which is a relatively simple and inexpensive process. When Consent Orders are made the parties gain the benefit of knowing their agreement is binding and enforceable.

Financial agreements can be classified into three categories:

1. Binding Financial Agreement (commonly referred to as a pre-nuptial agreement (entered into before or during the relationship) – s 90B,

2. Binding Financial Agreement during marriage – s 90C and

3. Binding Financial Agreement after divorce – s 90D.

If you have to an agreement without obtaining independent legal advice, remember that you should find out what your legal entitlements are before you sign anything.

Gaining knowledge on your legal entitlements will help you to make an informed decision before you enter into a binding agreement.

A qualified lawyer can draft the agreement for you. This will ensure that the agreement covers all legal issues, particular those you may not be aware of. A properly drafted agreement will help to ensure the agreement is binding.

Depending on the length of the relationship, how the parties have organised their finances and their circumstances, a property settlement can be quite simple or involve complex negotiations.

Both financial and non-financial contributions are taken into account when deciding a property settlement. It is important to understand that the Family Law Act takes into account various items and factors that you may not be aware of. These include compensation payments for personal injury, ill health or disability of each party, superannuation, future needs, the future earning capacity of each party, the health of any children and the financial resources of each party such as expected future inheritances.

It is important to find out what your legal entitlements are before you sign anything.

If you are negotiating an agreement yourself, gaining knowledge on your legal entitlements will help you to make an informed decision.

There are several options for resolving property or financial disputes.

If you and your partner can reach agreement on how your assets and liabilities should be shared you can choose to formalise this agreement. Either a binding financial agreement or consent orders can record the agreement.

Where you and your partner cannot reach agreement on how your assets and liabilities should be shared, an application can be made for the Court to hear your matter. This process is costly and time consuming.

We will always try to resolve your property/financial issues by way of agreement and we will only proceed to a Court hearing as a last option.

Mediation procedures are very effective in dispute resolution and are used to assist parties to reach financial settlements. Mediation is a in a dignified, timely and cost-effective process which can achieve a co-operative result for both parties.

No, you do not have to wait to be divorced.

You can apply for Orders concerning your property or children as soon as you separate.

But, when your divorce is granted, you will then have only 12 months to seek property settlement Orders.  After this time you need to apply to the Court for special permission to issue proceedings.

There may be circumstances where you may require an injunction or a restraining order. This is a court order to stop someone from doing something which may disadvantage you, such as stopping your spouse/partner from withdrawing savings out of a bank account or taking the children overseas or moving the children’s residence or school without your consent.

The court uses a four-step process to determine how property is divided between partners.

1. Identify and value all of the assets and liabilities.  This requires both partners to be forthcoming and disclose all of the necessary documents and certificates regarding property.  A court will look unfavorably upon someone who is not honest at this stage.
2. Evaluate the contributions each partner made to the asset pool.  This includes both financial contributions, such as salary and wages and indirect financial contributions, like gifts or property, like a home, acquired through an inheritance.   The court will also consider non-financial contributions, such as taking care of the home and the children.
3. Consider the future needs of each partner.   The court will take into consideration the health, age, education and earning capacity of each partner.  One partner may have stayed at home to care for the children for the last 10 years, enabling the other partner to develop professionally and earn a higher income.   These factors need to be considered when deciding who gets which property.
4. Provide a “just and equitable” division of the property.  The law does not require that the distribution of property be equal, only that it be fair.  For example, the court may determine that since the mother will be taking care of the couple’s five young children, she should keep the marital home.

Marital property is all assets and liabilities acquired during the course of the marriage.   Assets might include your home, cars, furniture, shares in a company, rental income and savings.   Liabilities can include any debt, such as mortgages or other loans and leases.

Generally, anything acquired before the marriage is not considered marital property.   However, the court might determine that certain types of property are marital.  The longer a couple is married, the more likely a court will consider property – even property acquired by one partner before the marriage – to be marital property.  For example, perhaps you purchased your home before getting married.  Fifteen years later your spouse, who had a higher income, contributed equally to the mortgage payments and the house renovations, may now be entitled to some share of the value of the house.

Speak with a specialist family law attorney at Mathews Family Law today to discuss your property matter.