What does the Family Court look at when determining a property settlement?
Published on October 26, 2017
By way of reiteration, in determining an application for adjustment of property interests under the Family Law Act, the Court adopts a five stage approach:
Firstly, the court considers whether it is “just and equitable” in all of the circumstances of the case to make a property adjustment. If you have been in a relationship and own property together or it is within 12 months after a divorce or 2 years after the breakdown of a de-facto relationship then you will likely overcome this threshold.
Secondly, the Court attempts to identify and value all of the property and resources of the parties, including any property held by each party in their own name and property held jointly. The value apportioned to the property is normally the amount that would be received if the property and/or resource is sold or realised.
The third stage entails a historical review of the [select]marriage/relationship where the Court attempts to assess the contributions by both parties toward the acquisition, conservation and improvement of the property and the resources of the parties. This examination includes an assessment of contributions made both indirectly and directly toward the property, both of a financial and non-financial nature. The Court also takes into account other contributions made by the parties during the marriage, including, the role of the each party as homemaker and parent and other contributions of each party to the general well being of the family.
After making an assessment of the contributions, the Court then turns to the fourth stage of the process. The Court takes into account such things as the property and resources available to both parties, both present and future, and each party’s ability to care and provide for themselves in the future. At this stage the Court considers whether there should be an adjustment to the division of the property to allow for any disparity between the parties’ future needs and capacity to provide for themselves or relevant others.
Finally, the Court considers all the circumstances of the matter and may make further adjustments if it considers it necessary to do so.
If you are able to reach an agreement with your husband/wife we suggest you consider evidencing same with Consent Orders.