On separation most parties are able to resolve the division of their assets by negotiation, with the assistance of their lawyers, often by mediation. On relatively rare occasions, parties require the assistance of Courts to make a determination. When making a determination the Court is required to consider the provisions of the Family Law Act 1975 (Cth).
Parties may resolve their settlement in whatever manner they wish. However, a Court won’t make an Order, whether by Consent or not, which does not meet the requirements of the Family Law Act 1975 (Cth).
As a rule, the advice Family Law Practitioners provide to their clients follow the approach of the Courts to determining property dispute. Every matter though, is determined on its own set of facts and there is no “one size fits all” template.
Judges (and Family Lawyers and their clients) are required to:-
- Determine the value and extent of the asset pool;
- Consider whether it is “just and equitable” to make an Order at all;
- Consider what contributions were made during the relationship and at the commencement of the relationship by each party (generally contributions are regarded as being equal unless one party came into the relationship with more assets or received more assets from say their side of the family during the relationship);
- Consider the contributions up to the date of settlement or Hearing (in many cases those contributions are determined to be equal. However, if one party has made greater contributions, for instance, towards the care of children without financial support from the other, there may be a percentage adjustment in favour of the first party);
- Consider the future needs of both parties. (If one party leaves a relationship with a higher earning capacity than the other party, or if one party’s earning capacity will be affected by the need to care for young children, or if one party has health difficulties which affect their ability to obtain employment, there will generally be an adjustment in that party’s favour.)
- The Court will then usually determine an appropriate percentage and apply that percentage to the asset pool and adjust the property interests of the parties’ accordingly.
Parties are not required to enter into formal binding agreements or Consent Orders. However, it is generally advisable to do so to prevent one party making a further claim in the future. The parties can take also advantage of a Stamp Duty Concession and Capital Gains Tax rollover relief if they have a Binding Financial Agreement or Court Order.
When you first see a Solicitor about your family law matter, take with you the following information and documents:-
- A list of your and the other party’s current assets and liabilities and at the time of commencement of cohabitation;
- Your latest payslip;
- Your latest tax return (and financial statements);
- A copy of any Trust Deed;
- Your latest superannuation statement;
- A copy of your latest bank statements; and
- A copy of statements showing debts.
At Wonderley & Hall you can obtain initial advice, at a relatively modest fixed fee, about your rights, what steps you need to take to resolve the matter and what matters you should “look out for”. Contact one of our family lawyers to discuss your situation.