The Family Law Act sets out the legal principles by which property settlements are worked out following a separation. Over the years judges have made countless decisions which enable lawyers to tell their clients what to expect.
We can assist you in the determining your entitlement by
Establishing what constitutes the matrimonial pool of assets and prepare a family balance sheet, of assets and liabilities. It does not matter in whose name an asset or a debt is, and a separate list for superannuation is required.
Then we provide an assessment of past contributions, both financial and non-financial. In a typical household where husband has been the primary earner and Mum the primary parent and homemaker, those contributions will normally be seen as equal.
Having established as to whether there are special contribution factors, then we make any necessary adjustments based on future needs and responsibilities. Typical of matters for which adjustments will be made are under Section 75(20 of the Family Law Act:-
- The ongoing care of children,
- Other financial resources, such as family trusts,
- Age, health and earning capacity, often related
Finally we look at the outcome to see whether it is “just and equitable”, in most cases must be determined on a case by case basis.
A similar process is applied to superannuation. Once an appropriate division is determined, some of one party’s superannuation can be transferred to the other party, but as superannuation.
It is not compulsory to sell assets. If one party wants to keep the family home, for example, and can do so, then a formal valuation will normally be seen as acceptable evidence of the worth of the property.
Probably the most common way of finalizing a property settlement is by “Consent Orders”, which are final court orders obtained by a joint written application, without any court appearance or by a Binding Financial Agreement at Separation which does not involve Court process at all.
Property claims also applies to a de facto relationship if the parties have been together for two years, or have a child.