After separation, an important matter to consider is what will happen to your matrimonial property and finances. Often, if a couple is on speaking terms, they will try to negotiate a division of their assets amongst themselves. Normally, you will either agree or disagree on a proposed settlement and if they disagree, they often go to lawyers to seek advice on their property or financial dispute within a family law context.
In property and financial disputes within family law, you must make a genuine effort to resolve the dispute before seeking property and financial orders in Court. This requires participation in dispute resolution procedures, such as mediation or negotiation.
In the Family Court – parties are required to follow pre-action procedures such as dispute resolution before they are able to file an application, and in the Federal Circuit Court – parties are encouraged to resolve issues they don’t agree about before filing any applications. For more information on the two different that handle family law matters, click here.
In many cases, parties will be ordered to attend dispute resolution before they file with the Court.
What if my spouse and I agree on a division of our assets?
If the parties agree, then you and your spouse can enter into Consent Orders or a Binding Financial Agreement (commonly referred to as a ‘prenuptial agreement’ in the US) which will set give effect to the proposed division.
There are many advantages when spouses agree to a division, such as:
- You can control the outcome and get to make your own decisions;
- You can agree on something in which you both are happy;
- You can save a lot of money on legal costs and the emotional stress;
- You can reduce the financial burden of legal proceedings, which will dimish the matrimonial assets;
- You can reduce the stress, time and emotional costs of legal proceedings;
- You have a higher chance of maintaining an amicable relationship with your spouse – which is important if you have children.
It is important to note that the Family Court will only make the consent orders if they consider the orders to be ‘just and equitable’.
For more information on Consent Orders or Binding Financial Agreements, click here.
What if my spouse and I cannot reach an agreement?
If after making a genuine effort to resolve the matter by family dispute resolution you are still unable to reach an agreement, you may need to consider applying to a court for orders.
What kind of property and financial orders can I apply for?
You can apply for various orders relating to:
Property – to determine how your property, income, financial resources and liabilities should be divided amongst yourselves;
Maintenance – to provide financial support to a spouse;
Child Support – to provide financial support and assistance to children under the age of 18, in certain circumstances.
What does the court look at when deciding to make property or financial orders?
The Family Courts are not able to make orders with respect to property unless it is satisfied that is it is just and equitable to do so.
The first step would be to work out the matrimonial assets and liabilities. Then the Court will look at both the direct and indirect financial and non-financial contributions of both parties during the relationship and any future needs of the parties after considering their age, health, care of children, income and financial resources.
The Court will also endeavour to make orders which will once and for all finalise and determine the financial relationship between the parties.
What does ‘just and equitable’ mean?
This is generally the last step in a family law financial and property settlement. It requires the Family Court to look at:
- The contributions, both financial and non-financial, to the relationship made by both parties;
- The current and future needs of both parties.
The purpose is to determine whether or not the proposed settlement is fair, taking into consideration the contributions and needs of both parties.
On the other hand, if you unable to reach an agreement with your ex-partner about the division of property from your relationship or in regards to spousal maintenance, you may have to apply to the Court for property or financial orders.
Part VIII (8) (married) and VIIIAB (de-facto) of the Family Law Act applies to both married couples and de-facto relationships, including same-sex couples. Section 80 and 90SS the Act sets out property and spousal maintenance orders the Court can make for married couples and de-facto couples.
Are there time limits to make an application?
If you are married, you can apply at any time before the divorce, or within 12 months following your divorce. If there are good reasons as to why you were unable to make an application within the 12 month period following the Divorce, the Court can extend the 12-month limit.
De-facto and same-sex couples must file their application within 2 years of their relationship ending. Again, if 2 years have lapsed, you must seek permission from the Court to file the application and must provide reasons as to why it was not filed within time.
If you believe you may be out of time, contact Rockliffs Lawyers now and ask to speak to the family law department to see how we can help.
Need more information?
Visit the following websites for further information on family law financial and property disputes:
- Family Relationships Online provides all families (whether together or separated) with access to information about family relationship issues, ranging from building better relationships to dispute resolution. It also allows families to find out about a range of services that can assist them to manage relationship issues, including agreeing on appropriate arrangements for children after parents separate.
- Family Relationship Centres provide relationship support services nationally. There are 65 Family Relationships Centres across Australia, managed by a number of different organisations including Relationships Australia.
- Family Court of Australia provides numerous family law resources including information booklets, D.I.Y kits, Court forms and family court processes.