Property settlement requires that the court consider the parties’ initial, during and post-separation contributions to the property pool as well as parties differing ‘future needs’. This includes property that each party brought into the relationship, the financial position and wealth of the parties, financial contributions, non-financial contributions, and contributions made for the welfare of the family generally.
Where the time limit for commencing property proceedings has expired, where parties seek a release from potential future claims of spousal maintenance, or when the agreement is unlikely to be approved by a Registrar of the court, the parties may opt to enter into a financial agreement. This allows parties to opt out of the court’s jurisdiction to deal with property and spousal maintenance matters. Spousal maintenance creates liability for one party to maintain the other person to the extent that they are reasonably able to do so, and that the other party is unable to support themselves adequately.
Consent Orders are a way by which you and your ex-partner can document and formalise the division of assets and/or parenting arrangements. For any property settlement proceedings, including related divorce proceedings, please ensure that you observe the relevant statutory time limits. Further, a pre-nuptial agreement is a type of Financial Agreement which contains the details of how your property is to be divided upon the unfortunate event of separation. This may be helpful in terms of protecting your assets, especially where there is a financial imbalance between the parties.
When the court looks to altering parties’ interests in property as a result of separation, they will consider the initial and post separation contributions towards the property pool to determine the division of distribution that each party shall receive. These contributions must have been made towards the acquisition, conservation and improvement of the property pool.
The court places a large emphasis on the property that each party brought into the relationship and how their financial position enabled the parties to increase the property pool and wealth of the parties. For example, if one party owned a business at the commencement of the relationship and that business was the main source of income for the parties over the course of the relationship, then that party may receive an adjustment in their favour. Similarly, if one party owned a property and the equity in that property was used to purchase the matrimonial home then they might receive an adjustment in their favour.
A financial agreement is a document that allows couples to opt out of the court’s jurisdiction to deal with property and spousal maintenance matters under the Family Law Act 1975. There are three difference kinds of Financial Agreements:
Under section 72(1) the Family Law Act, a party to a marriage is liable to maintain the other person to extent that the payer is reasonably able to do so if, and only if, that other party is unable to support themselves adequately whether:
Consent Orders are a way by which you and your ex-partner can document and formalise the division of assets and / or parenting arrangements.
Parties must first come to an agreement regarding property settlements and / or the parenting arrangements. Once both parties’ consent to the terms and are happy to move forward, an Application for Consent Orders and Minutes of Consent can be filed with the Federal Circuit and Family Court of Australia.
It is important to be aware that time limits restrict the time frame you have to bring an action in the Federal Circuit and Family Court of Australia. Once a time limit has expired, a party will be prevented from starting a claim without first applying for leave of the court.
An application for a property settlement matter must be commenced with two years from the date of separation in the case of de facto couples, and 12 months after a divorce order has taken effect for married couples.
A prenuptial agreement is a type of Financial Agreement which contains the details of how your property is to be divided upon the unfortunate event of separation. By entering into a prenuptial agreement, you effectively opt out of the court’s jurisdiction to divide your property in accordance with the Family Law Act 1975 upon separation. Parties generally enter into these kinds of agreements to avoid the need to engage in costly legal proceedings in the event that they are to separate.
The Family Law Act 1975 provides that both heterosexual and same-sex couples can enter into prenuptial agreements.