What happens to our Kids?

An application for a property settlement can be made once a divorce or separation is final.

In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court and will be decided on the basis of need. The settlement reached becomes legally binding and enforceable by the courts.

Applications

A property settlement can always be reached between two parties by agreement. If the two parties cannot agree on how to divide the property, an application can be made to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court, or to the Federal Magistrates Court where a property dispute is worth less than $700,000.

Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. You may apply to the court to make your application outside of this time period.

De facto and same sex partners can make an application for a property settlement under state law. In New South Wales this application can be made under the Property (Relationships) Act 1984 (NSW). A de facto relationship only legally exists if a relationship has been continuing for at least two years. If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. An application for a property settlement under this act can be made in the Supreme Court, District Court or Local Court, depending on the amount in question.

This application must be made within two years of the end of the relationship.

Property

In making an order for property settlement the total pool of assets of the parties is calculated by the court. This calculation will be made up of assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account.

The division of assets between the parties involves looking at the contributions each party has made to the asset pool and the future needs of the parties. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.

If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.

Spousal maintenance

A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once. In the case of a de facto relationship there are limited rights to claim spousal maintenance.

Enforcement

If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied. If a party is not complying with the orders made, an application can be made to the court for enforcement. The court will then decide whether an order is needed to enforce the existing order.

Conclusion

A family law property settlement is an important process to go through after the breakdown of a marriage or a de facto relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.

Please note that our provision of any telephone advice to you is only a general discussion to assist as to whether you wish to instruct us. Telephone discussions should not be construed as legal advice and are not to be relied upon. Legal advice which you can rely on can only be properly provided by us to you at or following an initial conference. We are not responsible for any action you may take or fail to take based upon the provision of our telephone advice to you. If you wish to arrange a conference, please contact us.

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Recent Cases

Family Law Property Division - 30/09/2010

Watson & Watson acted on behalf of the Wife. There was a long marriage of approximately 20 years and there were significant assets, however, there were very substantial debts and the total net assets...

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22/07/2011

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18/07/2011

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3/06/2011

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26/05/2011

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Wonderful news!
Thank you kindly for your great work, I am so very pleased and thrilled with the result.
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All my family are grateful and so happy."
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25/05/2011

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17/05/2011

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11/05/2011

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4/05/2011

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20/04/2011

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31/03/2011

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29/03/2011

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4/03/2011

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4/03/2011

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21/01/2011

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1/12/2010

"I found myself in a difficult situation and was fortunate to engage Richard Watson of Watson & Watson. Richard helped explain the options and alternatives available to me and the likely outcomes having regard to all matters to be taken into account. Richard helped me come to a very satisfactory resolution of the matters and as a result I have been able to secure accommodation for myself and children in the local district in a relatively short period of time. In addition to the advice as to the various alternatives, options and likely outcomes I found Richard caring.

Throughout when things were difficult Richard was a steady influence so that I could achieve the optimum outcome for all concerned. I recommend Watson & Watson for any other person in similar circumstances. "
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1/11/2010

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1/08/2010

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1/08/2010

"I was in a position that I had exchanged on the purchase of a property and I had agreement from my ex for funding the purchase, however, after I exchanged to purchase, my ex changed his verbal agreement. I came to Watson & Watson as my daughter had received a very good outcome with understanding. Watson & Watson in a very short period of time achieved a cost effective settlement which allowed me to complete my purchase. Their experience relating to various alternatives gave me other alternatives and allowed me to conclude the finalization of the property matter with my ex and the purchase of the property in a very short period of time and to my utmost satisfaction."
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1/07/2010

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1/06/2010

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31/05/2010

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1/05/2010

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1/02/2010

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