Property Division: Court Determinations & Guidelines
The Family Law Act (Part IIIV) guides property division proceedings. For those from a de facto relationship, Part IIIVAB of the Family Law Act is applicable.
When determining property proceedings, a Court will consider and/or has the power to undertake the following:
Property Interest Adjustments. The Court has the power to effectively adjust or alter the interests that are held by each party. This can be affected by many factors, such as: the health of the parties or the financial responsibilities of the parties. This sits under Section 79(1) of the Family Law Act.
Just and Equitable Principle. Any decision made by the Court has to follow this requirement (Section 79(2) of the Family Law Act). If the Court deems that a certain property division decision is neither just nor equitable to one party, it will not proceed.
Property Dispute Determination
In determining a property settlement matter, the Court will typically follow a number of steps in line with the Family Law Act (Section 79). These include:
Listing and Valuation. The first step involves listing all the property and financial resources of the parties at the point in time of the hearing. Liabilities are also listed as part of this process. Each is also valued.
When undertaking this step, each party must fully reveal all property and resources. The entire property owned must be listed and valued, despite ownership or the circumstances surrounding its purchase. Determination involves the property at the time of the hearing. If, for any reason, property has been previously divided up or is absent, it will also be placed into a theoretical asset pool.
Percentage of Contributions. This next step in the property settlement determination involves the Court working out what contributions (i.e. financial and non-financial) each party has made during the relationship. This is calculated as a percentage of the net value of all the property and is guided by Section 79 (4) of the Family Law Act. Although this percentage is the most common technique used, in some instances, the Court makes a decision in relation to each asset.
Adjustment. The Court has the power to adjust any interests that a party has in a property settlement matter. This adjustment will affect the percentage of contributions. It might relate to inequality in income, earning potential or expenses associated with caring for children from the relationship. This fits under Section 75(2) of the Act.
Just and Equitable. The final step involves examining the findings and determining if the result are “just and equitable” for each party (under Section 79(2) of the Act).
Time Period Restraints
If the determination relates to property or maintenance, and the couple were married, there is a one year (12 month) window from the Divorce Order where they can make an application. Under 79A, this time period restraint does not apply to a Maintenance Order (i.e. seek a variation, revive, suspension or discharge) or when wanting to set aside a Property Order.
Domestic/De Facto Property Division
In the case of a couple from a de facto relationship, the time period is two years following the conclusion of their relationship. An application for a Property or Maintenance Order can be made within this time; however, it is possible to apply outside of this time period (i.e. leave of the Court might be acquired).
- Children's Issues
- Child Support
- De Facto & Domestic Relationships
- Domestic/Family Violence
- Financial Agreements