Property Settlement by GreenMeansGo


 under the Family Law Act
If you and your partner separate, you need to consider what is to happen in relation to
the division of any property that you own. The Family Law Act provides for property
settlements between couples who are, or have been, married and also couples
who have been in a de facto relationship. For the purposes of the Family Law Act
a de facto relationship includes a relationship between two people of the same sex.
The powers set out in the Family Law Act can be exercised by the Family Court of
Australia, the Federal Magistrates Court of Australia or a Local Court, depending on
the value of the property involved.

The Plain English Guide answers some of the more commonly asked questions
regarding property settlement under the Family Law Act, but remember your lawyer
is available to answer any other questions or provide advice when you need it.

>>If both parties have reached an                      Magistrates Court or the Family Court. There
agreement as to how the property will                  are ongoing opportunities for settlement of the
be divided, how can they be sure their                 proceedings after filing an application for property
agreement is binding and enforceable?                  settlement in the Federal Magistrates Court
                                                       or the Family Court. Most property settlement
In many cases parties are able to reach agreement      applications filed in a Court are settled without a
about a property settlement with the assistance        decision being made by the Court. If a settlement
of their lawyers. If they do, they can make an         is not achieved then the Court will make a
application for consent orders which is a relatively   decision as to how the property of the couple
simple and inexpensive procedure. If consent           should be divided after a hearing before a judge
orders are made then the parties have the benefit       or other officer of the Court. Complex property
of knowing that their agreement is binding and         settlement matters are dealt with by the Family
enforceable. There are also certain tax benefits        Court of Australia which has different procedures
in having orders made.                                 and more resources to enable it to deal with these
>>What happens when the parties are
unable to reach an agreement about                     >>What are the steps involved in an
the division of property?                              application for property settlement
                                                       under the Family Law Act?
If you cannot reach agreement with your former
partner as to a property settlement then you need      When you apply for a property settlement, the
to file an application for property settlement in       Court determines the application by way of a “4-
the appropriate Court. The majority of property        step” process.
settlements are dealt with by either the Federal

                                                                BUSINESS LAW
                                                                FAMILY LAW
                                                                PROPERTY LAW
Step 1 – Identifying and valuing the assets,         • where one of the parties has made a substantial
liabilities and financial resources of the              contribution by way of an inheritance, gift from
parties                                                family or personal injury settlement;

This first step involves identifying and valuing      • where one of the parties has brought to
the assets, liabilities and financial resources of      the relationship special skills or has made
the parties. This includes all assets, liabilities     outstanding efforts which have resulted in the
and financial resources, whenever and however           accumulation of substantial wealth; or
acquired. In many cases this is a simple part
of the process. However, in some cases,              • where the deliberate or reckless conduct of
particularly those involving businesses, the           one of the parties has resulted in a loss to the
valuation exercise can be quite complex and            parties.
require the involvement of specialist experts.
                                                     Step 3 – Assessing the future needs of each
Step 2 – Assessment of the contributions             of the parties
made by the parties
                                                     The third step involves assessing the future needs
The second step involves the assessment of           of each of the parties. The Court must consider
the contributions made by the parties during         such things as:-
their relationship. These include:-
                                                     • the age and state of health of each of the
• direct and indirect financial contributions to        parties;
  the property of the parties;
                                                     • the income, property and financial resources
• direct and indirect non-financial contributions       of each of the parties and their capacity for
  to the property of the parties; and                  employment;

• contributions to the welfare of the family         • who has the care of any child of the relationship
  including contributions in the capacity of           under the age of 18 years;
  homemaker or parent.
                                                     • commitments necessary to enable a party to
>>Under what circumstances may                         support himself or herself or any other person
the Court find that the contributions                   that the party has a duty to maintain;
of the parties were other than equal?
                                                     • the eligibility of either party for a pension
In many cases, particularly where there has            superannuation;
been a long relationship, the Court will form the
view that the parties have contributed equally.      • the standard of living that is reasonable in the
The Court may find that the contributions of            circumstances;
the parties were other than equal, particularly
in the following instances:-                         • the extent to which the earning capacity of a
                                                       party has been affected by the relationship;
• where the relationship is short and there            and
  are no children, in which case the Court will
  be principally concerned about the direct          • if either party is living with somebody else, the
  financial contributions made by each of the           financial circumstances of their household.

• where one of the parties has entered the
  relationship with considerably more assets
  than the other party;
When the Court considers these factors it will then            >>Is it possible to have a binding
decide whether there ought to be an adjustment in              pre-nuptial or pre-relationship
favour of one or other of the parties to compensate            agreement?
for any difference in their future circumstances.
                                                               The Family Law Act provides for binding
Step 4 – Is the proposed division of property                  financial agreements to be made between
fair to both parties?                                          parties to a marriage or de facto relationship.
                                                               These agreements can be made before,
After assessing steps 1- 3, the Court must then                during or after the end of the marriage or
decide whether the proposed division of assets                 de facto relationship. It is now possible for
is fair to each of the parties. This assessment is             parties entering into a marriage or de facto
done by holistically examining the circumstances               relationship to agree what will happen in the
of each case.                                                  event that they separate. This option may be
                                                               attractive to parties entering into a second or
                                                               subsequent marriage or de facto relationship
                                                               with substantial assets.

  How can Coleman & Greig help you?

  At Coleman & Greig we have a number of family lawyers and Accredited Specialists in Family Law
  who practise exclusively in the area of family law. As well as our practical experience in all aspects of
  family law, other specialist lawyers in the firm are able to contribute their expertise in areas such as
  commercial, taxation and property law where such issues need to be considered in dealing with your

  We aim to provide the service that is right for you, whether that be simply advising you as to your rights
  and obligations, assisting you in negotiating a resolution of issues in dispute or representing you in
  contested proceedings in the Family Court. Where appropriate we will work with your other advisers,
  such as your accountant, so as to achieve a good understanding of all aspects of your case and provide
  you with the best possible representation.

  Examples of how we can provide expert advice on property settlement issues under the Family Law
  Act include:

  •    If you and your former partner have reached an agreement as to how you will divide your property,
       we can assist you in formalising the agreement so as to make it legally binding and enforceable.

  •    If you wish to enter into negotiations with your former partner with a view to arriving at a mutually
       acceptable property settlement, we can conduct those negotiations on your behalf with the other
       party or his or her lawyer.

  •    We can represent you in court proceedings concerning division of property and any other issues
       arising in relation to your financial interests that can be dealt with under the Family Law Act.
>>Interpreter Services                                >>Other Services

Coleman & Greig can provide interpreter services      Coleman & Greig provides a wide range of
in a range of foreign languages including:            services including:

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Reprinted August 2009
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                                        Phone: 02 9635 6422 Fax: 02 9689 3983 Email:

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