3. Property

Q. What assets will the court consider when dividing property?

A. ALL assets will be considered, including superannuation, inheritances and future entitlements (e.g. a personal injuries claim or long service leave entitlements). The fact that a property is in the name of one person only, or owned by a trust or company, is irrelevant for Court proceedings. It must be disclosed and taken into account if it is under the control or influence of one or both of the parties.

Q. What orders can the court make?

A. The Family Court may make any Order that it thinks fit altering the interests of either the husband or the wife in any property owned by both or either of them. Nevertheless, the Court will make no Order at all altering such interests unless it is satisfied that “in all circumstances, it is just and equitable” to make the Order.

If you and your spouse agree on how to divide your property, you can enter into Consent Orders which reflect your agreement. Consent Orders can contain agreements with respect to all types of property matters, including property division, superannuation and spousal maintenance. In making Consent Orders, the Court’s only requirement is that the Orders that you have agreed upon are “fair and equitable”.

Q. How will the property be divided between myself and my husband/wife?

A. In deciding what Order ought to be made, the Court will take into account:-

1. The financial contribution made directly or indirectly by or on behalf of either the husband or the wife or of any child of the marriage to the acquisition, conservation or improvement of the property;
2. Any direct or indirect financial or non-financial contribution made by either the husband or the wife to the acquisition, conservation or improvement of the property;
3. Contributions made by either of the parties in their capacity as homemaker and/or parent;
4. The needs of the parties, including:
   1. the age and state of health of both husband and wife;
   2. the income, property and financial resources of both husband and wife and their physical and mental capacity for appropriate employment;
   3. whether either of them has care of a child of the marriage under 18 years;
   4. the financial needs and obligations of each of the parties;
   5. the responsibility of either of them to support any other person;
   6. a standard of living that “in all the circumstances is reasonable”;
   7. whether the payment of maintenance to the other party under consideration would enable them to undertake a course of education or training to start a business so as to be able to earn income;
   8. the extent to which the party under consideration has contributed to the income, earning capacity, property and financial resources of the other property;
   9. the duration of the marriage and the extent to which it has affected the earning capacity of either party;
   10. the need to protect a party who wishes to continue their role as parent;
   11. if either party is cohabiting with another person, the financial circumstances relating to cohabitation;
   12. the terms of any Order altering the interest of either of the parties in any property owned by either of them.
   13. “any fact or circumstance, which, in the opinion of the Court, the justice of the case requires to be taken into account”.

Q. When can I apply for a property settlement?

A. Property Settlement proceedings can be made immediately following separation but must be applied for within twelve months of a final Divorce Order (that is, when the “Certificate of Divorce” is issued), otherwise an additional Application must be made to obtain permission from the Court to make an Application out of time (which will not necessarily be granted in every case).