Property Settlements

A financial order is a set of orders made by the Federal Circuit Court or Family Court relating to the division of property, child support (in certain circumstances), and payment for spousal or de facto partner maintenance.

Pre-action procedures in property and financial matters

Before you file an application with the court seeking property and financial orders, there is a requirement that the parties follow pre-action procedures, which includes attending dispute resolution.

Time limitation to file an application for property and financial orders

An application can be filed anytime after separation but should be filed within 12 months of divorce or 2 years following the date of separation for a de facto relationship.
If there is an agreement for the division of property, this can be finalised by an application for consent orders.

An application for consent orders is more expeditious and less expensive than disputed and contentious litigation in court.

However, if no agreement is able to be reached, a party can commence proceedings by filing an initiating application in the Federal Circuit Court of Australia or the Family Court of Australia to request orders to be made.

The Family Law Act 1975 (Cth) sets out the general principles the court considers when deciding a financial dispute after the breakdown of a marriage or de facto relationship. These general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship.

The way your assets and debts will be shared will depend on the individual circumstances of your family. It is important to note that each family law property case is different and the outcome is likely to be different from others you may have heard about.

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Four Step Process
The process that the court determines a financial dispute involves a four step process. In considering what order (if any) should be made for property settlement proceedings, the court is required to take into account the following:
  • Step 1
    To determine the asset pool

    To determine all of the assets, liabilities, and financial resources of the parties to ascertain the net equity. This is often referred to as the “asset pool” or “property pool”.

  • Step 2
    To determine the parties respective contributions

    (i) To determine the financial contributions made directly or indirectly by a party to the marriage. This includes taking into consideration the assets that the parties had at the commencement of the relationship, assets acquired during the relationship, and post-separation contributions.

    (ii) To determine the non-financial contributions made directly or indirectly by or on behalf of a party to the marriage. This may include renovations made to a property, receiving inheritances or gifts during the marriage, and the general maintenance to the family home.

    (iii) The contribution made by a party to the marriage in the capacity of a homemaker or parent.

  • Step 3
    Future factors

    To ascertain whether there are any future factors that the court should take into account. For example, whether a party of the marriage or de facto relationship requires financial assistance by way of spousal maintenance, if there is a disparity of income, if there is an age difference, if a party has medical needs and/or requires ongoing future assistance, if a party is unable to obtain gainful employment.

  • Step 4
    Just and equitable

    That any order that the court makes must be just and equitable.

Documents to be filed to start your application

To apply for an alteration of property interests, the following court documents are required to be filed:

1) An Initiating Application which sets out the details of the parties and the orders sought to be made by the court

2) A Financial Statement which includes details of your employment, your income, your personal expenses, property that you own (including real estate, funds in bank accounts, investments, life insurance policies, motor vehicles, interest in any business operated by you whether as a sole trader, partnership or proprietary limited company or trust), household contents, and any other personal property, superannuation (whether an accumulation interest, a self-managed fund, or defined benefit interest), your liabilities – this includes home mortgages, loans (whether personal loan or an overdraft), credit cards, hire purchase/lease agreements, business liabilities or any other personal liabilities, financial resources; whether you have an interest in a trust or deceased estate or any other financial resources that you are expecting to receive), whether you have disposed of a property since the date of separation.

3) An Affidavit which is provides detailed background of the relationship, including the parties respective contributions to support the orders sought in the Initiating Application.

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