We empower you to move on from the breakdown of your relationship with clarity, security and closure.
Property settlement matters can be complex. Accordingly, each case will require an in depth analysis and ultimately will be determined on its own facts.
At Lewis & McNamara, we understand the emotional and financial impact a relationship breakdown can have you on and your loved ones. We work with you to lift the cloud of uncertainly from the property settlement process and provide clear and concise advice to safeguard your rights and entitlements.
Our proactive approach to family law disputes aims to maximise your positive outcome, while minimising the stress and disruption to you and your loved ones.
We support the long-term sustainability of your outcomes, ensuring that you are empowered to move on from the breakdown of your relationship with clarity, security and closure.
Here is what you need to know about Property Settlements.
The Family Law Act 1975 (Cth) applies equally in most States, and certainly in Queensland in relation to property settlement matters for both defacto couples and married couples. In considering an order for property settlement, a Court will embark upon a four-step process as follows:
STEP 1 - Determine the pool
The pool of assets, and liabilities, including superannuation, held by the parties at the time when they reach court is compiled.
Often it is necessary to have items valued, for example houses, cars, businesses etc. A single valuer can be appointed by the Court, generally with the agreement of the parties, to save the costs of having two valuers (and to avoid the likelihood of disputes between valuers if each party were to retain their own).
Liabilities largely determine themselves and are rarely in dispute except in cases of family loans and liabilities.
Superannuation information can be obtained from each spouses’ superannuation fund directly without the other’s knowledge or by consent through certain specific applications.
STEP 2 - Assessing the contributions
The Courts assess the contributions of each spouse before the relationship, during the relationship, and contributions made since separation.
Contributions include financial contributions, as well as non-financial contributions (such as building work or other contributions not matched by the other spouse), and contributions as a homemaker.
In assessing initial contributions, the Court will not just look at the initial contribution itself, particularly in long relationships. In the case of Williams & Williams the Full Court of the Family Court stated that:-
“there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.”
An example of this principle was then discussed by the Court when they said:-
“Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.”
The Court also does not draw a line in the sand at the date of separation and assesses the assets at that time. The Court will continue to monitor the actions of the parties after separation, and make any adjustments it considers necessary for their conduct up until trial.
The Court will then settle upon an adjustment to the pool of assets in favour of a party.
STEP 3 - Consideration of the future of the parties
The Court will then consider the future of the parties including:-
(c) Care responsibilities for children and others;
(d) Qualifications and education;
(e) Ability to earn income;
(f) Circumstances of any new relationship with another party.
The Court will settle upon a percentage adjustment to the pool of assets depending upon those matters considered.
STEP 4 - Is the result just and equitable?
Lastly, the Court will independently consider whether the resultarrived at by the first three steps is just and equitable, once identified assets, superannuation and liabilities are attributed to a particular party. Adjustment under this provision is only undertaken in relatively rare cases.
It is important to obtain clear advice to understand the process and how it will apply to you. This will not remove all of the stress of being involved in family law proceedings, but knowledge of the process and how a Court treats each matter will likely reduce the stress to you.
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