Court proceedings for property settlement may commence even if the couple is not separated.
As you might know, family court proceedings related to financial matters take place when a married couple or one in a de facto relationship decides to part ways and cannot come to a mutual agreement about how they should divide their finances and property.
However, what if you heard about Family Court proceedings related to financial matters for married couples who are NOT contemplating divorce?
You would probably feel disappointed, shocked or surprised upon hearing this. As a matter of fact, it may even not seem right to the average person. But did you know that, legally speaking, it is far from wrong? Yes, according to the Family Law Act of 1975, Court proceedings for spousal maintenance or property settlement may commence even if the couple is not separated.
In most cases, these applications are commenced in situations where either one or both parties are elderly and may not have the physical and mental capacity to take care of themselves. Incapacity as a result of age often creates a financial need, such as costs of a nursing home or ongoing medical expenses for the incapacitated party.
This type of court proceeding usually takes place in case where one spouse needs funds for placement in a nursing home, but the other spouse refuses to provide the required financial assistance for some reason be it their own incapacity, unwillingness or fear of being alone. Undoubtedly, these cases prove extremely complicated for family law practitioners and the Court, especially if the sole asset of both parties is the family home.
As a result, meeting the financial needs of the incapacitated party could inevitably lead to the sale of the family home, leaving the other party homeless. Besides the practical problem of Court proceedings for married couples who have not separated yet, there are also circumstances where the proceedings are commenced by an adult child of the parties, and not one of the parties to the marriage. Although this could be purely for the benefit of their parent, the motives of the adult child might be questioned.
After all, who knows, maybe the adult child was simply trying to guarantee their inheritance and nothing more? Therefore, family court proceedings, ideally, should be commenced by one of the parties to a marriage, and not by a person who is in the twilight of their life, as it can lead to further complications.
There are many cases, though, where both parties are able to reach a mutual agreement about the distribution of their finances and property with much-needed assistance from their lawyers. If they are able to reach an agreement, an application can be made by the parties for consent order. It’s a relatively straightforward procedure from there onwards. Once the court agrees to the consent order, the parties can rest assured that their agreement is enforceable and binding!
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.