Author

Alan Weiss

13th 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.

How does the Family Court deal with a property case

The powers of the Family Courts in property settlement proceedings under the Family Law Act 1975 are applicable to both legally married parties and to parties who are in a de facto relationship.

Under the law, a property settlement proceeding means, whether the parties are legally married or in a de facto relationship, is a proceeding that deals with the property of the parties or either of them or the vested bankruptcy property in relation to a bankrupt party to the marriage or in a de facto relationship.

In this kind of proceedings, the court may exercise the powers vested in it under the law. The purpose of these powers is to make sure that the interests of both parties, as well as the interest of their child, are fully protected in an efficient and convenient manner.

In considering what order to make in property settlement proceedings, the court shall take into account the contribution (financial or financial) by a party to a marriage to the acquisition, conversation or improvement of any of the property of the parties.

The court shall also take into consideration the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage and the effect of the order upon the earning capacity of either party to the marriage. (Section 79, Family Law Act 1975)

Declaration of interests in property

In addition to the specific powers of Family Courts in property-related cases, the law allows the court to issue an order that the court deems necessary for the proper and speedy disposition of the case.

The most used power of the court in property settlement proceedings is the declaration by the court that a party or parties have particular interest or ownership in a particular property. It means that the court may declare a party owns the whole or part of the property.

Thus, in proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property. (Section 78 (1), Family Law Act 1975)

For example, if the parties disagree on who owns the house or the extent of ownership to the house, the court may determine and declare that, say, 50% of the house belongs to the husband and 50% belongs to the wife.

The court is also authorized to make or issue an order to make sure that its declaration that a party or both parties have an interest or ownership of the property in question will be given effect. It may order for the sale of the property and the proceeds of it will be divided between the parties according to their respective interest or it may order the partition of the property when a partition is possible.

In addition to giving the effect of the declaration of interest, the court may order that the possession of a particular property should go to one of the parties or may award joint possession of the subject property.

Thus, where a court makes a declaration, it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession. (Section 78 (2), Family Law Act 1975)

Suspension of property proceedings

The court may suspend the property proceedings if the subject property is affected by the proceeds of crime. This is to make sure that the parties will be prevented from enjoying the fruits of a crime.

If a person makes an application for an order with respect to the property of the parties to a marriage or either of them and that person knows that the property of the parties to the marriage or either of them is covered by proceeds of crime order or a forfeiture application, he or she must disclose in the application the proceeds of crime order or forfeiture application and give the court give the court a sealed copy of that order or application. (Section 79B, Family Law Act 1979)

A court in which property settlement proceedings are pending must stay the proceedings if notified about the crime order or forfeiture application and before staying proceedings may invite or require the proceeds of crime authority to make submissions relating to staying the proceedings. (SECT 79C, Family Law Act 1975)

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 lawyer. Contact CM Lawyers

ASK A QUESTION - IT'S FREE