The court follows a four-step process in the exercise of its discretion.
It is a common tendency for people with property disputes to compare their cases with those that have already been decided by the court. There is then the expectation that they will receive the same decisions handed down to the people they know. In reality, there is never the same decision in a property dispute because every case is decided according to the circumstances of the parties.
Under family law, the property is divided by the court that is just and equitable for the parties. This is actually the last step in a four-step process that is adopted by the court in a case that involves division of property.
The court is not required to follow a strict formula on how to divide the assets in a marriage or de facto relationship. Courts exercise a wide discretion in their decision making since the family law has not imposed strict rules to follow.
The first step is for parties to identify their assets and liabilities. A full and frank disclosure is very important because this is how the court ascertains how financially rich or poor the relationship is. Real estate, cars, bank deposits, superannuations, interests in trusts, partnerships and corporations must be declared.
Financial and non-financial contributions of each spouse or de facto partner will then be considered. The court will look into how the individual contributions of the parties have helped in the acquisition of an asset or improved it. The contributions given may be direct or indirect. Examples of direct contributions are salaries, wages and business income. Indirect contributions may be in the form of gifts and inheritances received. This is also the stage where the spending habits or wastage committed by parties are weighed versus their contributions.
The third part of the process requires taking into consideration the future needs of the parties and their children if any. Factors such as age, health, employability, care of children or a dependent person, and sources of income will be taken into account by the court in deciding how much to give to each litigant.
Finally, the court will make a decision that is practical, just and equitable for everyone.
Persons who were in a marriage or de facto relationship can file an application with the court for property settlement. The Family Court and Federal Circuit Court have jurisdiction with respect to financial matters in a marriage or de facto relationship which includes property division.
You would need to give proof that you were previously in a marriage or a de facto relationship which makes you entitled to a property settlement. A certification from a family dispute resolution practitioner is also required before the court will take action on the application.