HOW TO DO A PROPERTY SETTLEMENT IN FAMILY LAW
There is four step process that needs to be followed in order to obtain a property settlement. Recent case law has provided that there is an additional fifth step that the court must consider in addition to this four step process.
In Stanford v Stanford  HCA 52, it was held that the court must consider whether it is ‘just and equitable’ to make an order that alters the parties interests. In some circumstances where parties have kept their finances completely separate, it may not be just and equitable to interfere with that parties finances.
Usually in a situation where the marriage or de facto relationship has broken down irretrievably, and the parties have intermingled their finances to some degree, there would be sufficient grounds to establish that it is just and equitable for a settlement order to be made.
STEP 1: ASSETS IN THE RELATIONSHIP
Firstly, the assets & liabilities in the marriage or de facto relationship need to be identified.
- It is important that both parties are honest and provide full and frank disclosure of all of the assets and liabilities in the relationship.
- All material items (house, cars, furniture, etc.) as well as superannuation need to be included in this step.
- All of these assets and liabilities must then be given a monetary value.
- In most situations all of the assets, liabilities superannuation will form one net asset pool.
- In some situations there can be a two asset pool approach, but please seek advice if you think this may be relevant to you (i.e. where a party quarantines an asset as it may not be just an equitable to include it into the pool).
STEP 2: CONTRIBUTIONS MADE BY EACH PARTY
When determining how to divide the asset pool the court will look to the contributions each party made upon entering the relationship, combined with those made throughout the duration of the relationship.
Both financial and non-financial contributions are taken into account by the court.
Some contributions the courts may consider include:
- Initial contributions; what did each party bring with them at the start of the relationship?
- Financial contributions; did either party receive any inheritances, gifts or large payments during/after the relationship?
- Non-financial contributions; did either party help contribute to the relationship in ways that were non-financial i.e. did a party paint the house etc?
- Homemaker contributions; how did each party contribute to the overall running of the household?
- Parenting contributions; only relevant where there are children involved in the relationship. These contributions can also be made to children who are not biological children to the relationship.
After all of these contributions have been identified the court will make a decision on the overall contributions of the parties in percentage form. For example; Wife 55%, Husband 45% or vice versa.
STEP 3: FUTURE NEEDS
The court will then consider the future needs of both parties to determine whether or not any adjustments need to be made to the percentage decided in Step 2.
These adjustments could be due to things such as:
- Illness or health problems;
- Age of the parties;
- Discrepancies in earning capacity (education can be quite relevant);
- Who is caring for the children (if there are any);
- Any financial resources a party may have (i.e. access to a family trust).
This new percentage is then applied to the asset pool to determine what each party is entitled to receive.
STEP 4: IS THE AGREEMENT ‘JUST AND EQUITABLE’?
The final step is to determine whether or not the result is ‘just and equitable’. This simply means is the result fair for both parties?
If the result is fair for both parties then the settlement process is completed, if it is not fair then changes may need to be made to ensure that both parties are achieving a fair outcome. If both parties agree on a settlement a solicitor can draft the documents to complete the settlement for them.
What happens when both parties don’t agree?
If an agreement cannot be reached by both parties, they may be required to commence court proceedings to achieve a settlement by making an application to the court for Final Orders.
If you would like expert advice on your range of entitlement for a property settlement, please do not hesitate to contact our family law team today for a free 30-minute initial consultation. You can call the office on (07) 5635 0180 or use the booking form below.