Family Law

The division of property following divorce or separation

SOME KEY POINTS ABOUT PROPERTY SETTLEMENT AFTER DIVORCE

Separation is not easy on either party or on the dependants and other family members. The question of who gets what after the divorce only serves to complicate the issue further, if you are not fully aware of what the law has to say in the matter. The complications can be quite enormous if you jointly hold property of significant value in various locations. The Family Law Act covers these aspects and it can be enforced by local courts, the Family Court of Australia or the Federal Court. Take a quick look at some key points to know about how property settlement after divorce is treated under Australian law.

YOU CAN REACH AN AGREEMENT WITH YOUR PARTNER ABOUT PROPERTY SETTLEMENT

The best way to go about dividing the property between the two of you is to discuss the issue and come to an agreement between you both. If you are unable to reach agreement, you may need to engage lawyers to arrive at an acceptable division strategy. Once you have finalised the division, this can be put into writing and consent orders can be sought. On receipt of the legal consent, your property division agreement is legally binding on both of you and you can proceed to make the settlement without further complications.

WHEN YOU CANNOT AGREE ON A SETTLEMENT STRATEGY

In such a situation, you will need apply to the relevant court for legal assistance. Typically, the Federal Court or the Family Court handles these applications. The procedure involves a hearing before the judge, following which the court decides how to divide the property. There are four steps in the property settlement process:

  • All the assets and liabilities (both cash and non- cash) belonging to either partner are identified and valued. Experts may be called in, if necessary, to ensure that a fair and accurate valuation is made.
  • The contribution of either partner in the relationship is measured. It is not restricted to merely cash contributions, but also includes the effort and time of a partner invested in parenting or in taking care of the home. The duration of the relationship, the presence of dependent family members (such as children) and many other factors play a key role in helping the court make a fair assessment of contributions.
  • Evaluation of the future needs of either partner is the third step and many aspects are factored in here as well, such as the age of both partners, the earnings and earning potential, standard of living, and the person who is more qualified to care for a child from the relationship.
  • The final and critical step is an objective look at whether the proposed property division is fair and just to both parties involved.

Icon Legal can assist you further advice or assistance in relation to the division of property or any other family law matter.

Parenting cases - The best interests of the child

The Family Law Act 1975 requires the court to consider the best interest of the child as the most important consideration when making a parenting law. When making parenting plans, the parents are encouraged to use this principle.

According to the Family Law Act:

  • Until the children reach the age of 18 years, both the parents are responsible for the welfare and care of their children.
  • The cooperation and shared responsibilities arrangement between the parents should be in the best interest of the child.

The court’s primary considerations

When a court has to decide what is best for the child, the following points have to be considered first.

  • The advantage of having a meaningful relationship with both the parents.
  • The need to protect the child from psychological or physical harm (family violence, neglect and/or abuse).

THE COURT’S ADDITIONAL CONSIDERATIONS

THE COURT ALSO HAS TO CONSIDER THE FOLLOWING POINTS.

  • The relationship of the children with their parents, and with other family members.
  • The child’s point of view, and the factors like the level of understanding and the maturity of the child, that impact those views.
  • The ability and willingness of one parent, for the child to have a meaningful relationship with the other parent.
  • The ability of each parent to meet the needs of the children.
  • The effect, physical and/or psychological, the child may have in accordance with the changed circumstances.
  • The expense, both in terms of money and practicality, that may occur in the child spending time with a parent.
  • The characteristics, like the background, lifestyle, sex, maturity, and so on, of the child, and that of the parents, that the court finds to be relevant.
  • The impact the parenting order may have on the right of an Aboriginal and Torres Strait Islander child, to enjoy his/her culture.
  • The outlook of both the parents towards the child, and their seriousness regarding the responsibilities of parenthood.
  • The preferability of the court order in relation to the child that would least likely lead to further hearings and court applications
  • Whether a parent had taken the opportunity to be involved in any major long-term decision-making with regards to the child’s future.
  • Whether a parent had met their obligations to maintain the child.
  • Whether facilitated the other parent’s involvement in these aspects of the child’s life.
  • Any other relevant information or circumstance that the court thinks is important.

If the court is dealing with the case of a child whose parents have already separated, then it has to take into consideration the circumstances and events since the separation.

If you need any advice regarding parenting plans or separation, Icon Legal can assist you.