Property matters
The Family Law Act provides for the division of property between spouses. This Act governs the resolution of disputes about property between couples who are married and de facto couples (including same sex) who separated after 1 March, 2009. It is possible for de facto couples who separated prior to 1 March, 2009 to opt in to the legislation.
The law about division of property is:
- The nett assets of the parties including superannuation is determined as at the current date (being the time that you settle or the matter is determined by the Court). All property is included regardless of whose name the property is held in or when the property was acquired.
- The contributions of each party to the property and the marriage are assessed and a percentage adjustment is made in favour of one party if required. Contributions include financial (direct and indirect), non financial (such as contribution to money management) and contributions as a homemaker and parent.
- The future means and needs of the parties are assessed (such as the care of children, disparity in earning capacity, ) and a further percentage adjustment is made if required.
- The Court considers whether in all the circumstances the final result is just and equitable.
For married couples, applications for property matters must be made within 12 months of a divorce order issuing. If you wish to apply for a property settlement outside of this time the Court’s permission to apply must first be obtained.
For de facto couples, the requirements are a little more complex. To be eligible to apply under the Family Law Act you must have lived together for at least 2 years or had a child together or one of the parties must have made a significant contribution to the other’s property. You must also be both ordinarily resident in a participating jurisdiction (which at the present time includes all Australian States except South Australia and Western Australia) at the date of separation or both be resident in the participating jurisdiction when the application is made and have been resident in that jurisdiction for at least one third of the relationship or have made a substantial contribution in such jurisdiction such that there would otherwise be an injustice.
If you do not qualify to make a claim for property settlement under the Family Law Act you may be entitled to make a claim under Part 19 of the Property Law Act in Queensland or the comparable legislation in other states. The time limits are the same for this application and the process for resolving disputes similar. The main differences are that the state courts cannot make orders splitting superannuation and cannot make orders for spousal maintenance.
Resolution of property matters between de facto partners (or the issuing of a court application) must take place within 2 years of separation. After that time leave of the Court will be required.
The court can make orders to adjust property interests between spouses and interim orders to preserve property pending trial.
We have a lot of experience in dealing with property matters. We can assist you by with advice as you undertake mediation together, representing you at mediation, or representing you in court. Some of our clients chose the collaborative process. For others, it is necessary to litigate. We have extensive experience representing clients in property matters in both state and federal courts.
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