when taking section 75(2) family law act factors into account, a monetary value is determined, not a percentage.
terms of any binding financial agreement
There are several factors that the Court will take into account in deciding property settlement cases. The Court will exercise its discretion in determining which factors will apply to the case. Some of these factors that will be considered by the court are found in Section 75(2) of the Family Law Act 1975:
- Health of the parties;
- Income, property and financial resources of the parties;
- Income earning capacity of the parties;
- Whether a party has the care or control of a below 18 year old child of the marriage;
- Whether a party is supporting another person who is not a child of the marriage;
- Reasonable standard of living;
- Eligibility of the parties for pension, allowance or benefit which includes a superannuation fund;
- Whether payment of maintenance will increase the earning capacity of the party by undertaking an educational course or training;
- Effect of any payment on the ability of a creditor of a party to recover a debt;
- Extent of contribution to the income, earning capacity, property of the other party;
- If a party is cohabiting with another person and its effect on the financial circumstances of the party;
- The need to protect a party who wishes to continue his role as a parent;
- Terms of any orders made in relation to the property of the parties or vested bankruptcy property;
- Child support that a party has provided or might provide in the future;
These factors are generally not considered in high-income cases except for exceptional occasions. In taking into account the factors enumerated in Section 75(2) Family Law Act a monetary value is determined and not a percentage. These factors might prove difficult to be applied in cases where traditional gender roles are not being adhered to. In cases where a party has already found a new partner or “re-partnered”, the court will look into the new financial status of the party and how this will affect the property determination in the property settlement case.
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.