If you are going through a Divorce or Separation, you will need a Specialist Family Lawyer guiding you through the process and supporting you each step of the way.
Here at Nevett Ford our Family Law team can help you through any stage of a Property Settlement. Please contact us on 03 9615 4327 to speak to a Family Law Specialist.
Property proceedings are issued under Part IIIV of the Family Law Act or Part IIIVAB
for De Facto claims.
Alteration of Property Interests
In property settlement proceedings, the Court may make such Order as it considers
appropriate, altering the interest of the parties to marriage in the property Section
79(1).
Just and Equitable Requirement
The Court shall not make an Order under this section unless it is satisfied that
in the circumstances, it is just and equitable to make the Order Section 79(2).
The Four Steps in Determining a Property Dispute
There are essentially four phases of inquiry made by the Court in property settlement
Applications pursuant to Section 79 of the Family Law Act.
These steps are as follows:
- Identify and value the property, liabilities and financial resources of the parties
as at the date of the hearing;
- Assess their financial and non-financial and welfare contributions under Section
79(4)(a), (b) & (c) as a percentage of the net value of their property;
- Assess any relevant Section 75(2) factors, such as disparative income and earning
capacity and the capital costs of having the care of children, as an adjustment
of the contribution based assessment;
- Consider the effect of those findings and specify what Order should in all the circumstances
be made for a “just and equitable” outcome as required by Section 79(2).
In respect of Step 1, it is necessary “to consider the whole of the property of
the parties, however and whenever required”. Each party is required to make a full
and frank disclosure of their financial circumstances. Property has been very broadly
defined and the Court has power to alter the interest of the parties in their property,
i.e. all of their property, regardless of when or how it was acquired and in whose
name it is owned.
Usually the value of the property at the date of Hearing is considered. Any premature
distributions of property made to either party before then, or assets unaccounted
for are included by being added back notionally to the asset pool.
In respect of Step 2, a global approach has been applied by the Courts as the guideline
in most cases by assessing contributions in terms of a proportion of the total assets
of the parties. An asset by asset approach is sometimes used.
Time Limits
For matrimonial property settlements or maintenance, the deadline is 12 months after
a divorce order has taken effect.
This time limit does not apply to application to set aside a property Order under
Section 79A or the vary, revive, suspend or discharge a maintenance Order.
De Facto Property Claims
A party to a de facto relationship may apply for a property (and maintenance) Order
only if the Application is made within two years after the end of the relationship.
The Court may grant leave to apply out of time on the same grounds as for spousal
maintenance for married parties.
Where to now?
Speak to a Family Law Specialist
Often the best way to get the answers you need is to
speak to a Specialist.
To contact one of our family law specialist please
use our contact form or please call us on +61 3 9615
4327.
Book a consultation
A consultation with one of our Family Law
Specialists allows you the chance to talk about your
family law issue and work with people who deal with
these issues on a daily basis.
Also, it gives you the chance to ask any questions
that are on your mind and gives us the chance to
learn about your situation and what options are open
to you
For more information please call us on +61 3 9615
4327 or send as an e-mail at
info@nffamilylawyersmelbourne.com.au. We can
help you in any situation.
