In the concept of family law, property pertains to the real and personal properties of the marriage or de facto relationship. Whether a property is a common asset of the marriage or de facto relationship is usually the issue in property disputes.
In some cases where the separation between the parties is amicable they can agree which property is a common asset but if the property dispute reaches the court it is the judicial officer that will decide.
There is a way of avoiding a property disputes in the future and this is by execution of binding financial agreements or prenuptial agreements. Early in the relationship, parties can stipulate in a written agreement which properties will become part of the conjugal asset pool and which will remain as individually owned and therefore should not be part of any division of properties in the future. Many property disputes have been avoided by the execution of prenuptial agreements.
Property may be in the form of real estate, motor vehicles, jewelry, shares of stock, business interests, superannuation, bank deposits and other assets. Just because a property is registered in the name of one of the parties does not mean that it is solely owned by that party. Neither does it mean that just because a property was already sold it is not to be included in the asset pool of the marriage or de facto relationship.
Property may also be acquired as a gift or inheritance. Unless there is an order or agreement between the parties, a property will continue to be co-owned by the spouses or de facto partners. Hence, a spouse or de facto partner cannot just simply change the locks of the house because the other party remains a co-owner of the matrimonial home.
When spouses or de facto partners separate, they are required to make a full and frank disclosure of all their assets and liabilities if they want to have a property settlement. This is necessary to determine the net asset pool of the parties.
Parties are encouraged to settle the property dispute among them. This is because a property dispute is one type of family issue that the Family Law Act allows to be the subject of a private agreement. However, it is important to seek legal advice first before signing any agreement. The division of properties between the parties should not have to reach the court.
Property settlement through the court is a time-consuming process and one that will cost the parties. Section 79(4) of the Family Law Act sets out the factors that the court will consider in a property dispute case.