how is the property settled in divorce in australian family law
No Fault Divorce in Australian Legal System goes to the process of consent first before any litigation may commence. This means that the parties, with regard to their property settlement, may stipulate and agree to almost any terms and/or conditions which they may settle upon and on the off chance that they fail to a property settlement, the court can decide on the said matter in accordance to the legal principles laid down in the Family Law Act 1975 (Cth).
Settlement process is important since it will mitigate the expenses and time for a Property Settlement in a Divorce can be effected. In the same manner, this Settlement Process can be treated as a precursor to measure expedite the court proceedings since the parties will be laying their demands and concerns before the actual hearing and proceedings in the Courts of Law.
The Court usually considers several factors in a Property Settlement in Divorce. However the following are being taken into consideration under s. 75(2) of the Family Law Act (Cth) when making a property settlement order:
1. Assets and Liabilities
Assets pertain to those properties acquired during the course of the Marriage and it can include real properties and personal properties. It includes stocks, shares, retirement benefits or superannuation, jewelleries, cars and any other items or things which are owned by both parties together. Liabilities on the other hand include debt, mortgage, loan and its other forms.
Contributions will include wage or salary, gift, inheritance, child care and other things that both parties may have given during the course of their marriage.
3. Future Needs
The reasonable standard of living for both parties is a recognised right and is taken into consideration. Child custody is largely given priority in the settlement especially if one party is more willing to take care of their child/children than the other party. The Age, Health and Future Earning Capacity is also an important factor in a settlement.
4. Just and Equity
The Court of Law can amend an order for the alteration of the property settlement as it may see fit under the principle of Just and Equity since the best interest of both parties are taken into consideration during the Court of their Settlement.
Full and Honest Disclosure of the Assets and Liabilities of both parties is important before the Court can issue an Order in the Settlement of the Properties in a Divorce. There is a serious penalty under the Family Law Rules 13.04 that can be imposed if there is a discrepancy and dishonest Declaration of Property is not made before hand.
Once everything is in order and the Court has precisely assessed all of the information, they will issue an appropriate Order on how the Property Settlement should be carried out.
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.