Division of properties after Divorce

After divorce, parties to the marriage may divide their properties by a written agreement between them without any court proceedings. In this case, their agreement becomes the governing law between them.

The parties may then enforce this agreement by applying for consent orders before the appropriate Family Court. If the parties cannot reach an agreement, either one of them may apply before the courts for financial orders, including the distribution of the common property and provision for support or maintenance.

In the division of the properties of the spouses, the Family Court, as a general rule, decides on the basis of the evidence adduced, as well as the just and equitable grounds. Clearly, there is no hard and fast rule as division of properties will depend on a case to case basis.

Under the Family Law Act 1975, however, the following factors are taken into consideration in the division:

a) the respective assets and liabilities of the party spouses;

b) the individual financial contributions by each party in the form of salaries and wages;

c) the indirect contributions to the conjugal assets such as gifts and inheritances;

d) non-financial or industrial contributions by each spouse to the marriage such as the rearing of the children; and e) future earning capacity of the spouses.

This considerations are the same whether the partnership of the spouses are legitimized by marriage or are de facto in nature.

Period for application for property adjustments

Property adjustments which are governed by marriage must be made within 12 months from the time the divorce decree became final. Property adjustments which are not made within this period will require special permission from the appropriate courts and only if the court is satisfied that:

a) undue prejudice or hardship would fall upon the party if the application is not granted;

b) if the application is coupled with a petition for maintenance, there is sufficient finding that the applicant is has no visible means of support.

What can be dealt with in a property settlement?

Aside from property settlement and adjustment, spousal maintenance and superannuation splitting are proper subjects of property settlement applications. For married couples, property settlement must be initiated within a year from the date of divorce.

Values of assets and liabilities

It is incumbent upon the parties to procure the services of an independent appraiser, preferably someone who is approved by the court, to provide certified valuations of not only the assets of the marriage and of the couple but as well as their respective liabilities.

Copies of relevant certificates, agreements or orders

Whenever applicable, the applicant must provide a copy of the Marriage Certificate as well as any existing agreement or order on the distribution of the properties.

Mediation or settling out of court

The court will refer the case for mediation in order to arrive at an amicable settlement of the properties. Once approved, the terms of the agreement become a binding and enforceable contract before the courts.