A brief summary on Family Law Property Settlement

If you and your partner have separated, it is vital for you to consider how the property you own is going to be divided.

The Family Law Act provides for separated couples who are married, divorced, or in a de facto relationship and wish to achieve a property settlement. The property provisions are designed to finalise the economic relationship between the parties as much as possible and to recognise the contributions of the parties to the property.

The Court (either the Family Court or the Federal Circuit Court), is able to make ‘such order as it considers appropriate’.  However, it must have regard to a method of reasoning called the ‘four-step process’. This is summarised to be as follows:

1. Identify and value the property of the parties

Property is anything containing legal or equitable interests of one or both partners.

Full disclosure of all assets and liabilities is required to fairly divide all assets. Failure to provide all the relevant information can have severe consequences. These can range from the Court giving preference to the other party through to being found ‘in contempt of the Court’ which can result in fines or imprisonment.

2. Consider the contributions of the parties

All contributions to the relationship (including non-financial contributions) are considered. Non-financial contributions can include amongst other things the need to look after children or the need to maintain the family home.

3. Consider the future needs of the parties

The Court must consider the future needs of the parties. This may include the health of either partner, who will care for the children, etc. The Court also considers any other relevant factors.

4. Consider whether the order proposed is just and equitable’

According to the Family Law Act s 79(2) the Court cannot agree to make an Order unless it is satisfied that the proposed agreement is ‘just and equitable’.

Parties are able to negotiate and reach a property settlement at any time, whether or not proceedings have been instituted in the Court. In fact, the majority of property matters are settled as a result of negotiation between parties and their solicitors and do not proceed to a contested hearing in Court.

However, you should keep in mind that there are time limits for bringing property proceedings to the Court, being 12 months from the date of a divorce order becoming absolute or 2 years following the end of a de facto relationship. These limits may be extended if they cause hardship.

If you have further questions, please contact us at frank@franklaw.com.au. 

This is not legal advice.