Property settlement / Division of matrimonial property (including superannuation) / Consent orders
If your marriage or de facto relationship has broken down, and in the absence of a Binding Financial Agreement, the Family Court will divide your property and assess the issue of spousal maintenance under the Family Law Act (if the parties are or were married) or under the Family Court Act (if the parties were in a de facto relationship).
The Court will go through several steps when assessing a Family Law matter.
Firstly, the Court will identify the nature and value of the assets of the parties. Then, the Court will consider the contributions of the parties, both financial and non financial. This will enable the Court to determine each party's entitlement in percentage terms, based on their respective overall contribution to the marriage or relationship. Once this is done, the Court will consider whether there is any necessity for an adjustment in favour of either party. To do this, the Court will have regard to matters such as present and future circumstances of the parties. After going through all those steps, the Court will be in a position to determine the final entitlement of each party.
This may sound reasonably simple, however, when considering such matters as earning capacities, taxation consequences of property division, effect of gifts and/or inheritances and how superannuation should be treated, matters can quickly become complex.
If you are able to reach an agreement with your the other party and you are able to lodge Consent Orders with the Family Court to be approved, then Court will still go through the steps descrived above to ensure that the orders sought are just and equitable. If the Court finds that the orders sought are not just and equitable, then the Court will not make orders even when the parties are in agreement.
This one of the reasons why it is important to seek legal advice even when you have reached an agreement in relation to property settlement.
We can provide you practical advice to help you negotiate and reach a final agreement.
If it is not possible to reach an agreement, then our experienced team is able to help you and represent you in the Family Court.