Property & Financial Situations

The Family Law Act 1975 (“the Act”) governs how assets, liabilities, superannuation, and financial resources are to be divided between couples who are or have been married or in a de facto relationship. For further information when you are in a de facto relationship you can continue reading here.

When determining a property settlement, whether by consent or at a litigated hearing, the Court must have regard to the following 4 step process:

Identification and valuation of the assets, liabilities and the financial resources of both parties. This includes all assets, liabilities and financial resources owned by each party as at the date of the Agreement;

An evaluation or assessment of the various financial and non-financial contributions that each party made in the relationship, from the date of cohabitation to the date the Orders are made.

An assessment of the various “economic factors” under Section 75(2) of the Family Law Act sometimes “future needs.”

This allows the Court to then adjust the percentage entitlements of either party (at Step 2) either upwards or downwards depending on the weight given to each of the Section 75(2) factors to ensure the overall effect of the Orders are just and equitable.

It is important to be aware there are time limits to file an Application for a property and financial settlement:

  1. Parties to a marriage must commence proceedings with 12 months from the date of their Divorce
  2. Parties to a De Facto relationship must commence proceedings with 2 years from the date of their Separation.

Leave can be sought to commence proceedings outside these timeframes. When determining an application to proceed out of time, the Court must consider:

  1. Whether the Applicant has a reasonable case to be heard;
  2. The financial and other circumstances of the parties;
  3. Any factors relevant to the issue of hardship;
  4. The length of the delay in bringing proceedings;
  5. Whether there was a reasonable explanation of the delay
  6. Whether the Respondent will suffer prejudice as a result of that delay if permission  were granted.

Although before commencing proceedings, the Family Law Act 1975 requires parties to engage in pre-action procedures, including attempting to negotiate a resolution.