property orders are issued for property division and spousal maintenance
what are the requirements?
Property orders issued by the court in family law proceedings may cover division or sale of assets, splitting of superannuation and spousal maintenance.
Applications for property orders are filed with the Family Court if the issues include complex matters like valuation of trusts and business interests or if there are multiple parties. If the dispute can be decided in a short period of time because of its simplicity, then the application may be filed with the Federal Circuit Court.
Divorced persons must file their application with the court within one year from the time that the divorce became final. Persons in de facto relationships have two years from the time the relationship broke down to file their application.
However, before filing the application in court parties must make a genuine effort to resolve their dispute through a family dispute resolution (FDR). The FDR is a pre-action procedure that aims to narrow down the issues between the parties and to resolve their dispute amicably. If FDR fails at least the court will not be burdened with irrelevant issues anymore.
Property orders consist of consent orders and orders issued after a trial. Consent orders are issued based on the draft agreement of parties as to how they are settling their property issues. When the agreement is ready, parties can take this to the court for issuance of consent orders without going through a trial. A consent order is binding and enforceable upon the parties.
A property order that is issued after trial requires evidence presentation. Parties will have to prove to the court’s satisfaction that they are entitled to property orders.
Are there criteria that the court will follow?
Yes. Concerning consent orders, the court will inspect the agreement of the parties whether the conditions therein are just and equitable for all concerned.
If the case proceeds to trial, the court will be guided four step criteria. The first step is the identification of all assets and properties of the parties. Parties will have to present to the court a list of their properties including real estates, business interests and all financial sources.
The second step is the identification of the financial and non-financial contributions of the parties. The non-financial contributions of a party include being a homemaker and making improvements to the family home.
The third step is an assessment of the needs of the parties. The court will consider factors like the ages and health of parties, their probability of gainful employment and whether either of them has the custody of a child.
The last step is that the court will make sure that the property orders are fair and equitable to both parties.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.