Whether you have separated, or are considering separating from your partner, it is often a time that causes angst and anxiety. Determining how the assets of the relationship will be divided and the prospect of being able to support yourself and moving past the separation can be quite a daunting experience. If you are thinking about applying for a divorce it is important to note that you must apply to the court for property orders within 12 months of your divorce becoming final. If you were in a de facto relationship, you are able to apply within two years from the date of separation. If you do not file within these time periods, leave of the Court will be required. It is important to note that parties can divide their assets before actually getting a divorce.
If your matter proceeds to court, the court is asked to determine the alteration of property interests. Based on the law as it stands today, the court applies the following steps to come to a decision:
Step 1
The court first needs to ascertain whether it is required to make an order altering legal and/or equitable rights and whether it has jurisdiction to do so.
Step 2
The court identifies the value of all the assets, liabilities and financial resources. The values are usually determined by way of consent or if there is no agreement, valuations are obtained. It is important to note that any values will generally be the value as at the date the court determines the matter unless there is compelling evidence before the court that the value of the asset pool or specific assets within the pool should be considered as at the date of separation.
Step 3
A court will determine what financial and non-financial contributions each party has made (both directly and indirectly) to the acquisition, conservation and improvement of those assets, liabilities and financial resources, as they stand at the time the matter is determined by the court.
Step 4
Taking the results after step 3, a court assesses whether any adjustment of property for future needs arises, with reference to a myriad of factors set out in either section 75(2) (for parties to a marital relationship) or section 90SM (for parties to a de facto relationship) of the Family Law Act 1975. The court is required to identify whether an adjustment will be afforded to either of the parties based on one or more of those factors being applicable in the matter.
Step 5
After consideration of the matters raised above, the court is then required to determine if an alteration of property interest is required, and if it is just and equitable in all of the circumstances having regard to the matters raised above to make orders.
Judicial Discretion
The court is made up of different judges exercising discretion so there is no strict mathematical approach to what the outcome will be. However, an outcome that is within a percentage range, based on the best and worst-case scenario in a matter is generally able to be provided in the early stages of the matter upon receipt of instructions addressing the matters set out above.
Next Steps
If you are separated or considering separation and don’t know what the next steps are in your matter or how to progress the matter in a meaningful and cost-effective way, our specialists can provide guidance on the process. For assistance, please do not hesitate to contact one of Coleman Greig’s Accredited Family Law Specialists:
