The dispute may have reached the court or is in the dispute resolution stage.
The Family Law Act 1975 encourages separating couples to reach a property settlement agreement without having to go to court. An agreement would save the parties of the hassle and expenses of a court litigation. The parties must make a genuine effort in resolving their dispute at the conciliation level. Parties would have control on the decision making of the division of their properties.
Their relationship and communication would most likely improve rather than deteriorate which is what usually happens to parties locked in a court battle. The court dockets would also be unclogged if parties reach an agreement by themselves.
Parties who reach an agreement can execute binding financial agreements which sets out the specifics of what they have agreed upon. Married spouses or de facto partners can execute a prenuptial agreement that will stipulate division of properties in case of separation. While a prenuptial agreement is not the most romantic way of starting a relationship, it has been found to be effective in avoiding a property dispute.
A binding financial agreement can even be executed anytime during the existence of the marriage or de facto relationship.
Another option for parties in agreement is to apply for consent orders from the court. The consent order will only contain the arrangements agreed upon by the parties in their property settlement. Application for consent orders no longer have to go through a hearing since all that the court needs to see is that the agreement is just and equitable.
In the event that the parties cannot resolve the dispute among themselves they will have to go to court and follow the court procedure. The authority of the court to make property orders for married couples is founded on Section 79 of the Family Law Act 1975 while for de facto relationships the basis is Section 90SM of the Act.
In a property dispute, the court will follow the mandatory four step process. The first step is to ascertain the net asset pool of the parties. Each spouse or de facto partner is required to make a full and frank disclosure of their assets. The definition of property covers almost everything that is of value which includes real property and personal property. So, the term “property” includes land, personal property like a car and furniture and financial resources like a trust or interest in a business.
The assets pertain to all property acquired by the parties before, during and after their divorce or separation. Once there is a net asset pool the court will then assess the individual contributions of the parties to the relationship, acquisition and improvement of the properties.
The individual contributions may be financial and non-financial which includes homemaking contributions. The fact that homemaking and parenting contributions is recognized by the Family Law Act 1975 as a direct contribution is a boon to those spouses or housewives who stayed at home and did not earn any income. This recognition assures them of a share of the matrimonial properties.
The third step is determining the future needs of the parties. Pursuant to Section 75(2) of the Family Law Act 1975, the court will be considering pertinent circumstances that will most likely affect the ability of a party to financially support himself.
Finally, the fourth step is that the court will consider a property settlement that is of practical effect to both of the parties. The court will see to it that the property settlement is just and equitable to both parties.