Fay is highly experienced to advise you in relation to division of property and the settlement with your de facto partner as to the assets and liabilities of your relationship.

The principles set out in the Family Law Act 1975 will be discussed with you and explained in detail at your first conference so that you will be familiar with the issues.

It is important to remember that in any applications for property division the courts consider all of the assets of the parties acquired before, during and after a relationship. In some instances the property may no longer be owned by the parties but will be taken into account.

In order to arrive at a fair and just outcome the courts have identified 4 steps in the process to fairly work out the division of property.

Step 1: Determining the asset pool

In determining the most appropriate settlement as to the division of property the first step is to work out the asset pool of the parties.

Each party must make a full and frank disclosure as to the property owned by them.  A Financial Statement is completed by each party.

The property may include real estate, bank accounts, motor vehicles, shares or household furniture and furnishings.  Superannuation entitlements are also taken into account as property but are treated differently.  Details of the superannuation funds must be ascertained.  The liabilities of both parties are then considered and these may include mortgages, credit cards, debts or personal loans.

After deducting the combined liabilities from the total asset pool you will be able to calculate the net value of the asset pool.

Step 2: Contributions

The second step in the process is to determine the contributions made by each of the parties during the relationship. These contributions may be direct or indirect financial or non financial.

The direct financial contributions may include such items as cash or real estate or motor vehicles that each party will introduce into the relationship. It may also include payments made by each of the parties from savings or income that are used to pay mortgages or loans. The indirect financial contributions may include inheritances or gifts.

The non financial contributions could represent physical work undertaken by the parties as to the renovation of the family home or other property or the research work undertaken in locating a property for purchase, the attendance at open house inspections of properties and the selection of the home or the furniture and furnishings.

The contributions as homemaker and parent are also important and are taken into account. The partner who ensures the home is cleaned and maintained or looks after the garden is acknowledged as providing a valuable non financial contribution.

The partner who devotes time to the parenting of the child or children in such activities as nurturing, assisting with homework, bathing, feeding, driving to sporting and other functions is also acknowledged as providing a valuable non financial contribution.

Step 3: Needs

The third step involves a consideration of the current and future needs of the parties in the relationship. An extensive menu set out in the Family Law Act 1975 is reviewed and will include such factors as:

  • The age of the parties
  • The state and health of the parties
  • The income, property and financial resources of the parties
  • The physical and mental capacity of each of the parties
  • Whether either party has the care or control of a child or children of the relationship who has not yet reached the age of 18 years
  • Commitments of each of the parties to maintain themselves or a child or children of the relationship
  • The responsibilities of either party to support another person
  • The eligibility of either party to receive a pension, allowance or benefit
  • A standard of living that is reasonable
  • The duration of the relationship
  • The need to protect a party who wishes to continue in the role of parent
  • If either party is cohabiting with another person, the financial circumstances of that other person
  • If either party is bankrupt
  • The liability for payment by either party as to child support
  • The terms of any financial agreement that may be relevant
  • Any other fact or circumstance that, in the opinion of the court, the justice of the case requires to be taken into account

Step 4: Who gets what

The final step, after considering the assets, the contributions and the needs of the parties, is to work out a fair and equitable division of the net asset pool.

It may not be considered appropriate that one party is totally depleted of all property however each case turns on its own individual facts. In some circumstances the conduct of one party is such that assets have been wasted or already appropriated and this will be reflected in the outcome.

At this time the practical effect of any proposed division must be considered and this may involve the split of the superannuation entitlements.

What happens after the 4 step process is completed

Once an agreement is reached as to a division of the property, you should ensure that it is recorded in a written document.

Fay will discuss with you the 2 options available to you and the most appropriate means to move forward with your agreement.

  • You and your partner may either sign Consent Orders that are filed with the Family Court, the Federal Circuit Court or a Local Court so that orders may be made by a judicial officer of the court, or
  • You and your partner may enter into a Binding Financial Agreement that is signed by each of you after careful explanation by your individual lawyers. This document is not filed in court.

The court must ensure that the orders are just and equitable having regard to each of the four steps in the process.

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call on 0416 196 541