What is property and what will the Court do with it?
If you cannot agree, the court is able to make orders relating to the distribution of your property after a relationship breakdown.
Whilst every matter is different and some property settlements are more complicated than others, the Family Law Act provides a basic framework which determines how every case should be decided. Keep in mind that there is no set formula to determine your property settlement. The court will make an order after it has heard all evidence regarding your matter and your solicitor will communicate your needs and wishes to the court. The court will then make a decision of what it believes is a just and equitable decision.
In family law, property involves all items of value relating to your relationship. All assets, liabilities and resources owned, shared and disposed of following separation by you and your former partner will be considered.
When you put in a property settlement application to the court you and your lawyer will fill out a financial statement and complete other legal documents which will disclose to the court all your property.
- You bank account balances
- Your house/s and your car/s
- Any investments, shares or trusts that you are involved in
- Any gifts or inheritances that you have received
- Your superannuation
- Any loans or other liabilities (including credit card debt)
What does the Court considers in making a property adjustment?
Your financial contributions to your relationship. Your income during the relationship, the payment of day to day expenses, any gifts or loans from family, compensation claims and lottery wins will be considered, amongst other things.
Your non-financial contributions
These include the care of your children, any homemaker duties or property improvements and the care of any other family member which meant that you could not work.
Your Future Needs
The court will look to your own and your former partners future needs. The future income streams and capacity of both you and your former partner will be considered. Your age, health, and your financial situation now and in the future and the needs of your children are all major factors in considering your future needs. This means that if you are unable to work for health or childcare reasons in the foreseeable future the court may consider this in making a property adjustment.
What the court will award?
The court can make a variety of different property orders depending on the adjustment it decides on. Your property settlement could include a lump sum payment, ongoing payments, the distribution of assets (including who keeps the family home or whether it is sold) or a superannuation distribution.
Each property settlement is different and the court will not automatically reward any specific combination of the above. It is up to you and your solicitor to convince the court of what is just and equitable in your matter.
How much time do I have to apply for a property settlement?
If you are divorced you must make an application for a property settlement within 12 months of the date that your divorce was finalised (you can find this date on your divorce order).
If you are not yet legally divorced then the clock for a property settlement has not yet started ticking and you can file an application at any time. Usually, the sooner you apply, the better.
If you were in a de facto relationship you must make an application to the court within 2 years of your relationship breaking down.