The Family Law Act gave the Family Court and Federal Circuit Court a wide discretion

The wide discretionary power of courts in property settlement cases allows them to be able to make a just and equitable order considering the totality of the facts and circumstances of the case.

The Family Law Act gave the Family Court and Federal Circuit Court a wide discretion in deciding property settlement disputes. Courts are guided with principles of equality and a four step approach but it is up to the judge or magistrate to apply these in the case.

Why did the law give the court a wide discretion?

It is because every case is different from the other. In every case the situation of the parties, their contributions, their assets and liabilities, and their capacities to provide financially are different from other couples who are also applying for property division. Given this diversity it would be very impractical if the power of courts to decide is limited. The discretion of the court to decide recognizes that fairness can only be achieved if the case is decided on its own merit.

Who and when can a person file a property settlement case?

A married person must file an application with the court within a year from the time the divorce became final while a de facto partner must do so within two years from the breakdown of the relationship.

How is a property case decided?

A four step approach is followed by the court in coming up with a fair and reasonable property order.

The first step is identifying the net assets of the parties. All the properties will be taken into account including business interests, financial sources and prospective sources of income as long as the party exercises control or interest over it like stocks and bonds.

Next is assessment of the contributions of the parties. Contributions may be financial or non-financial. It may be that the party is contributing salary, his labour or his being a homemaker. Inheritances and gifts received will likewise be accounted.

The third step is to identify the future needs of both parties. For this step there are many factors to consider including the age and health of the parties, their ability or the probability to still be employed and earn an income, whether either of them has a dependent in their care or if either of them is in another relationship. These factors will be important in the decision making of the judge.

Finally, the court will make orders that have practical effect for both parties. Justness and equality are the main considerations for this step.

Will the wealthier spouse or partner get a bigger share?

Not really. Financial contributions and ownership of assets is not the sole consideration for an award of property settlement. This is the benefit of courts having a wide discretionary power because they can make an order based on their appreciation of the totality of the circumstances of the parties.

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Author

Alan Weiss

15th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.