If you and your spouse can reach an agreement, you can obviously divide your property as you see fit. If you want to make your agreement about a property settlement legally binding and enforceable, you must file your agreement with the Family Law Courts in the form of an Application for Consent Orders together with Consent Orders.
The court will consider the Application and, if approved, meaning your agreement is just and equitable, make an Order of the Court.
If you cannot reach an agreement, you can ask the court to make an Order for your property settlement. There is no precise formula that the court must follow. There is no presumption that property should be divided equally.
Rather, the court must consider factors defined by the governing legislation together with case law. The most important consideration in determining whether or not a Court should make an Order in relation to a property division is whether that division, in all the circumstances, is just and equitable.
By considering the same factors that the Court does, you can arrive at an understanding of how the Court might fashion a property settlement in your case. That understanding should guide your negotiation with your spouse as you try to arrive at an agreement.
Orders relating to property settlement are made pursuant to Section 79 of the Family Law Act. Section 79 sets out the matters that the Court should take into account in making an Order for property settlement.
The general approach that is taken by the Court, in ascertaining what is a just and equitable property settlement, is said to involve a 3 step process. The Court must identify and value the net property of the parties available for division followed by identifying, assessing and evaluating the relevant contributions made by both parties to the marriage. These contributions can include, but are not limited to the following:
The court considers contributions, both financial and nonfinancial, that each party made to the acquisition and improvement of the property. Property brought into the marriage by a spouse, and property purchased by a spouse from that spouse’s earnings during the marriage, are examples of financial contributions made by a spouse to the acquisition of property. The investment of time to build an addition to a marital home is an example of a nonfinancial contribution to the improvement of the property.
The court considers contributions that each spouse made to the welfare of the family, including uncompensated work as a homemaker or parent. Giving value to those contributions recognizes that a spouse who earns income and uses that income to acquire property can do so because he or she has been freed from the burden of childcare, doing laundry, cleaning the house, and performing the other uncompensated work that is undertaken by his or her spouse.
As a general rule, in a brief marriage, the court is likely to return the parties to the position they occupied before they married. That is particularly true when there has been a little intermingling of finances and when the spouses purchased little property jointly.
In a long marriage that the spouses have treated as an equal partnership by depositing earnings into joint accounts and purchasing property jointly or for mutual use, the court might think it just to award each an equal share of the property.
An ageing or infirm spouse might need a greater share of the property to provide for his or her needs (unless those needs are met through an award of spousal maintenance).
The court will consider whether one spouse suffered a loss of earning capacity by leaving the workforce to raise children or to act as a homemaker, thus making it possible for the other spouse to improve his or her earning capacity.
In addition, a spouse with limited earning ability might need a greater share of property than the spouse contributed to providing for his or her needs (unless those needs are met through an award of spousal maintenance).
After considering the above three steps, the Court must look at its overall Orders and determine whether such Orders are just and equitable in the particular circumstances of the case.
Whether you only want to come in for an initial consultation to ask about your matter, or you are already involved in court proceedings, we would be pleased to advise you and act for you, if necessary. Call us at Taylor & Scott Lawyers Sydney on 1800 600 664.