How do the Courts divide the assets and liabilities of a married couple after separation?
If you and your spouse are unable to reach an agreement with regards to the division of your assets, the Court can divide the parties’ assets by taking the following four (4) steps:
Identifying and valuing the parties’ property, liabilities, and financial resources as at the date of the final hearing
Assessing the parties’ financial contributions, non-financial contributions and homemaker contributions made by each of them
- Financial contributions include: income, inheritances, gifts, compensation payouts, redundancy payments, windfalls (ie lotto winnings);
- Non- Financial contributions include: renovations undertaken which have improved the value of property, maintenance and repair works which have conserved the value of the parties’ property;
- Homemaker Contributions include all parenting tasks related to the care of the children such as feeding them, bathing them, supervising their homework as well as undertaking domestic chores such as cooking, keep the house clean and tidy, ironing, gardening etc.
Identifying and assessing the likely future needs of the parties. For example, a spouse having greater childcare commitments and/or a lesser earning capacity that the other party will be regarded as having greater future needs.
The Court will consider what division of assets is just and equitable in all the circumstances before it orders how the assets should be redistributed between the parties to a marriage.
Do de facto couples have the same rights as married couples in terms of the division of their assets?
Yes. The same provisions apply for both married and de facto couples in terms of the division of a couple’s assets.
Do I need to provide all information in relation to my financial circumstances to my ex-partner in a financial case?
Yes. Both you and your spouse need to be fully informed of each other’s financial circumstances before you enter into a property settlement agreement. Failure to do so could have adverse consequences such as the Court setting aside a legally binding property settlement even years later down the track and being ordered to pay your ex-partner’s legal costs of the legal proceedings.
What happens to my superannuation in a property settlement?
Depending on the nature and characteristics of your superannuation, it will be treated as a type of property and will be included in the overall property pool of the parties. When appropriate superannuation interests can be split as part of your overall property settlement.
What if my ex-partner and I have reached an agreement on property matters?
If you and your ex-partner have reached an agreement it is important to have it properly drawn up by a solicitor so it complies with the formal legal requirements. This is usually done by way of an Application for Consent Orders and it is filed with the Family Court of Australia for approval. If it is approved, then your agreement becomes a legally binding agreement.
In the alternative, you can have your agreement recorded into a Binding Financial Agreement. You should seek advice from an experienced Family Lawyer to enable you to make an informed decision as to which type of agreement is appropriate in your circumstances.
Are there any time limits when applying for a property settlement?
Yes. In the case of married couples, you have 12 months from the date your Divorce Order takes effect to make an application for a property settlement. You may also be able to apply to the Court for a property settlement outside the 12 month period in certain circumstances with the Court’s permission.
In the case of de facto couples, you have 2 years from the date of separation to bring an application for a property settlement. Similarly, you may also be able to apply for a property settlement outside the 2 year period in certain circumstances with the Court’s permission.
If you have any other specific questions or require advice on property and financial matters in Family Law, please contact Anthi Balafas, Accredited Specialist in Family Law.