Property Matters in Family Law

Family Law property matters can be tricky to understand. Antwan Lawyers can assist you in understanding what your entitlements are and will ensure that your interests are protected at all times.

It is always the practice of Antwan Lawyers to try and negotiate a settlement with your partner in the hope of avoiding the expense of litigation.

However, at times, litigation cannot be avoided and in some circumstances, starting a case can assist achieving a settlement.

There are many factors that are taken into consideration by the courts when they are considering dividing your assets.

1. What Does The Law Consider?

  • Financial contributions, such as property owned at the time of marriage, money contributed before or during the marriage, gifts and inheritances to one party, and efforts put into building up and running a business;
  • Non-financial contributions, such as work done on the property, and being the homemaker and parent; and
  • Future needs, which are determined by the age and health of the parties, their ability to support themselves, whether they are supporting other people (such as children or relatives), whether they are being supported themselves (such as a new partner or parents), and superannuation entitlements.

In many relationships the contributions of the homemaker are regarded as equal to the contributions of the income earner. This may not be the case where the marriage was short or the contributions of one party are large.

2. How Does The Court Decide On Property Division?

The Court goes through a four step process in all property settlement cases as follows:-

  1. Determining the Net Asset Pool of the Parties

The Court lists any assets and liabilities (including superannuation and any financial resource) in which both you and your spouse have an interest, whether that interest be in either of your sole names, joint names with each other, or joint names with anyone else.  The list of assets would also include any interests that either of you have in superannuation and can include any interest either of you may have in any trust.  For the purpose of listing assets and liabilities, it makes no difference if those assets or liabilities are held overseas.

All of the assets and liabilities are then either agreed as to their value by the parties, or if no agreement can be reached, an expert is appointed by the Court to value each of them.

At the conclusion of this stage, the Court adds up the value of all of the assets and deducts the value of all of the liabilities to arrive at an amount described as the net asset pool.  The net asset pool does not represent any particular asset or liability, but rather a sum of money which the Court is required to divide.

  1. Examine the Contributions of Each of the Parties to the Relationship in Four Main Areas:-
  • Financial Contributions

Financial contributions are contributions measured at the point of introduction of any finances to the relationship.  Those include what each of the parties had at the commencement of the relationship, week-to-week earnings, gifts, inheritances, compensation payments, termination payments, gambling winnings, proceeds from investments or any other matter in which finances were derived during the relationship.  The Court will generally not consider who paid for what during a relationship, except if it is found that one party has been wasteful in dealing with finances.  One of the things to keep in mind when assessing financial contributions to a relationship is that recent contributions to the relationship are weighted far more favourably than older contributions, that is to say older contributions become more blended as between the parties to the relationship as time goes by.

  • Homemaker Contributions

The Court looks at who performed the domestic duties in the relationship. In this regard, the Court is not concerned with the quality of the performance of those domestic duties, but rather just the fact that they were performed and by whom.  The most significant factors in this regard are whether or not those duties were a full or part-time concern of the party claiming to have performed them, and whether or not the couple made use of domestic help for things such as ironing, cleaning and lawn mowing.  The utilisation of domestic help, whether paid or performed by family, is often a factor in discounting the amount of domestic contributions provided by a party.

  • Parental Contributions

Again, the Court is generally not concerned with the quality of parenting, but rather simply who performed the functions associated with the raising of the children. The availability of the parent claiming to have made the contribution is significant, as is the performance of any parts of this task by domestic help.

  • Non-Financial Contributions

Non-financial contributions are not self evident by their title.  It refers to contributions which were made to increase the size of the net asset pool, but were not contributions for which there was any financial reward received.  An example of such a contribution would be where a house had been extended by the personal efforts of one of the parties and the extension of the house added significant value to it.  The result would be that the net asset pool would be increased from that activity, but that increase would not have been recognised as a financial contribution.

3. What Does The Court Then Do?

After hearing evidence about each of these four types of contributions, the Court would find on a percentage scale where each of the parties fell.  That is, the Court must determine what percentage of the contributions were made by the Husband and what percentage of the contributions were made by the Wife.

4. What Are The Assets That Are Included In Property Matters?

Most assets are taken into account. Below is a general list:

  • The matrimonial home.
  • Any investment properties.
  • Both superannuation assets of your partner and you.
  • Your life insurance policies.
  • Any motor vehicles, bikes, trucks, jet skis and boats.
  • Any shares owned by your partner and you.
  • Both incomes.
  • Any money held in banks.
  • Any other property held by you and your partner.
  • Any overseas property or bank accounts.

5. I Have Heard Some Things. Are They True?

There are many misconceptions. The following are an example:

  • If I leave, I’ll lose my rights.
  • I owned it before marriage, so it’s mine.
  • It is in my name, so it is mine.
  • I can keep inheritances and gifts.
  • I worked hard for this business and it’s mine.
  • Women always get the best deal.

5. Do I Have To Go To Court?

No. Although you do not need a property order to divide your marital property but in many cases it is incredibly worthwhile to formalise your agreement and have it sealed by the relevant Court. In fact, it is the practice of Antwan Lawyers to ensure you get exactly what you deserve and you have the law on your side with all the official paperwork in place.

If you would like an agreement to be formalised, we can apply for consent orders in the Family Court of Australia, Federal Circuit Court of Australia, District Court of NSW or Local Court, whichever is applicable to your situation. We can also draft and finalise binding financial agreements. Parties should have had independent legal advice before entering into terms of settlement to ensure that they understand what they are agreeing to.

6. What If We Can’t Settle?

Not every matter can be settled. There are some circumstances that require parties to litigate the matter. In that case, an application, affidavit and a financial statement need to be prepared and filed. The information contained in these documents must be accurate as they form part of the evidence of the case. Once the pleadings are filed, the matter will generally be referred to a Conciliation Conference. A conciliation conference aims, if possible, to help you reach an agreement on the financial issues arising from the breakdown of your relationship. It is usually presided by a Registrar.

If the matter still can not be settled at Conciliation Conference, the matter will be set down for hearing.

7. What If My Partner Is Trying To Dispose of Assets Without My Consent?

Unfortunately there are some circumstances when this does happen. It is best if you contact us to discuss your matter. Most of the time, you may need to bring an urgent Interim Application before the Court to stop one party from dealing with or disposing (selling) an asset. This is particularly important if you are not listed on the title or the ownership of the asset, such as your matrimonial home or an investment. Time is of essence in these matters and you should seek legal advice urgently to ensure your rights and entitlements are protected, even if you are not listed as an owner of an asset.

8. How Can Antwan Lawyers Help?

Antwan Lawyers will always assist you in all aspects of your property settlement matters. We can assist you:

  • Obtaining full and frank disclosure of all assets of the relationship.
  • Look into your contributions and your future needs.
  • Advise you on your likely entitlements.
  • Negotiate Settlements on your behalf with solicitors or even your former partner direct.
  • Prepare consent orders or Binding Financial Agreements to finalise of your matter.
  • Prepare your pleadings and act in Court to protect your interest.

Don’t take any risks with your Family Law Property Matters. Call us today to discuss your rights and your obligations.