Parts VIII and VIIIAB of the Family Law Act 1975 (Cth) (FL Act) provide that a court may make orders for the division of property of parties to a marriage or a de facto relationship respectively. Part VIIIAB also applies to same sex couples.
The main objects of the property provisions of the FL Act are to:
- finalise the economic relationship between the parties to the maximum extent possible;
- recognise the direct financial and indirect non-financial contributions of the parties; and
- recognise the contributions made by the parties to the welfare of the family.
The time limit for commencing property proceedings in court is:
- 12 months from the date on which a divorce order is finalised; or
- two years following the end of a de facto relationship.
Section 79 of the FL Act sets out the factors which govern the method by which a couple’s joint property interests must be adjusted.
The Full Court of the Family Court and the High Court of Australia has confirmed its understanding of the provisions contained in s79, by identifying four steps that a court must follow when determining the allocation of the parties’ property interests; as follows:
- First, the court asks whether it is ‘just and equitable’ to permit the parties to make a property settlement (in most cases it is);
- Identify the total value of the net property and financial resources of the parties, however and whenever such property and resources were acquired;
- Assess each party’s financial, non-financial and welfare contributions; and
- Assess any relevant factors pertaining to the future needs of the parties, such as their earning capacities, age, health, and the cost of having the care of a child of the parties under the age of 18 years
As the court is given relatively broad discretion to make property orders by reference to the specific circumstances of each case, it is very important that you obtain expert advice by reference to your particular situation and similar cases which have been decided by the courts.
We are available to advise and assist you in relation to your legal position under the property provisions of the FL Act either before, during or after the subsistence of your relationship.
We are also able to record and document any agreement or settlement reached between you and the other party, in a format which is enforceable in a court.
We have experience negotiating and litigating on behalf of our clients in relation to the division of their property interests, including when such interests involve complex assets and financial structures.