The Family Law Act provides for the division of property between spouses. This Act governs the resolution of disputes about property between couples who are married and de facto couples (including same sex).
To divide property after separation
To divide property after separation the Court takes the following approach:-
Identify the existing legal and equitable interests of each of the parties in property.
- The value is determined at the current date.
- All interests are included regardless of whose name the interest is held in or when the interest was acquired.
- Superannuation is included.
- Sometimes superannuation and non-superannuation assets are treated separately.
The Court must then satisfy itself that it is just and equitable to make orders varying the interests of the parties (section 79(2)). Usually the fact that the parties are separated satisfies the Court that it is just and equitable to make orders. It is not essential for separation to have occurred to convince a Court that it is just and equitable for orders to be made.
Identifying the contributions & future needs
Once the Court is satisfied that it is just and equitable to make an Order varying interests then they must consider various matters in determining what orders it is appropriate to make including:-
- The contributions of the parties are assessed and a percentage adjustment is made in favour of one party if required. Contributions can be financial or non-financial, direct or indirect and contributions to the welfare of the family. Contributions made at the commencement of the relationship, during the relationship and since separation are taken into account.
- The future means and needs of the parties are assessed having regard to a number of issues including income and earning capacity, property and resources, superannuation entitlements, health issues, the need for one party to care for the children of the marriage and the like.
- An assessment of entitlement in percentage terms is then determined.
We can assist you with advice on a likely outcome.
Regardless of whether the Court determines the matter or agreement is reached, these are the principles that will be used to work out the settlement.
For married couples
For married couples, applications for property matters must be made within 12 months of a divorce order issuing. If you wish to apply for a property settlement outside of this time the Court’s permission to apply must first be obtained.
For de facto couples
For de facto couples, the requirements are a little more complex. To be eligible to apply under the Family Law Act you must have lived together for at least 2 years or had a child together or one of the parties must have made a significant contribution to the other’s property. You must also be both ordinarily resident in a participating jurisdiction (which at the present time includes all Australian States except South Australia and Western Australia) at the date of separation or both be resident in the participating jurisdiction when the application is made and have been resident in that jurisdiction for at least one third of the relationship or have made a substantial contribution in such jurisdiction such that there would otherwise be an injustice.
Resolution of property matters between de facto partners (or the issuing of a court application) must take place within 2 years of separation. After that time leave of the Court will be required.