When a marriage or de facto relationship ends, property division is often one of the most complex and emotionally charged aspects of family law.
Property division in family law refers to the process of distributing assets, liabilities, and financial resources accumulated during a relationship. This includes real estate, investments, businesses, vehicles, household items, debts, superannuation and more. The objective is to achieve a just and equitable outcome that considers the individual circumstances of each party.
In Australia, there is no automatic 50/50 split of property. The Court considers various factors to determine an appropriate division, focusing on fairness and the specific needs of each party and any children involved.
The Court assesses the financial and non-financial contributions made by each party at the commencement of the relationship, during the relationship and upon the breakdown of the relationship. This includes contributions such as income, assets brought into the relationship, domestic duties, and child-rearing responsibilities.
The future needs of each party are also considered. Factors like age, health, income-earning capacity, and parental responsibilities are taken into account to ensure a fair outcome that addresses future financial stability.
The Court’s primary goal is to achieve a just and equitable division, taking into account the unique circumstances of each case. The focus is on achieving a resolution that is fair to both parties, even if it is not an equal division of assets.
Couples are encouraged to negotiate and reach an agreement on property division through mediation or collaborative law. This allows for more control over the outcome and can help maintain amicable relationships. If an agreement is reached, couples can apply for Consent Orders, which are legally binding and approved by the Court. This provides certainty and finality in property division.
Couples may also choose to enter into a Binding Financial Agreement (BFA), which outlines the agreed-upon property division. BFA’s can be drafted before, during, or after a relationship, providing a legally enforceable contract.
If an agreement cannot be reached through negotiation, mediation or collaborative practice, couples may need to make an application for property settlement in the Federal Circuit and Family Court of Australia. An application for property adjustment must be made within 12 month of divorce becoming final or within two years of the breakdown of the de facto relationship. If you want to start a proceeding for property adjustment out of time, you must ask the Court for leave which is not always granted.
Navigating property division in family law can be complex and emotionally challenging. It is essential to seek professional legal advice from a family lawyer experienced in property matters. A lawyer can guide you through the process, provide objective advice, and advocate for your interests to achieve the best possible outcome.
