In matters of family property dispute, the Court considers several important issues to determine how to divide an asset pool.
The Court’s approach is a multi-stage process.
In the first instance the Court must identify the existing legal and equitable interests of each party in relation to their assets, liabilities and financial resources of the parties at the time of the hearing. Further, in making a property settlement order, the Court considers whether it is just and equitable to make such an order.
Often, common use of the property of the parties to a marriage or de facto relationship is no longer possible in circumstances that there is a breakup in the relationship and the common ownership and use of the properties will no longer be for the benefit of both parties. Hence, this requirement is often readily satisfied.
Once the requirement for a just and equitable order is resolved, the Court will then consider the contributions made by the parties as outlined under relevant legislation. The parties’ contributions may vary from a range of direct, indirect, financial or non-financial contributions. Those contributions may also be classified as “initial contributions”, “contributions during the relationship” and “post-separation contributions”.
In doing so, the Court will also look at the effect of the contributions on the family’s welfare, the effect of any proposed orders on the earning capacity of each party, and other matters such as any child support that either party may have provided for the child or children of the marriage.
The above contributions will be considered by the Court in conjunction with other determining factors such as the duration of the marriage, the age and state of health of the parties, their income or financial resources and their commitments and responsibilities in supporting the children or any other person.
In any event, the Court will always consider the “justice and equity” of the actual orders to be made.
Assessing the foundation required for a property settlement, communicating with the other party and preparing for the requirements of the Court in a family law property settlement can be very daunting and complicated.
Our experienced family lawyers Sydney can meet with you and review your case with a view to considering all the matters relevant to the distribution of the assets and provide you advice and help you throughout this often stressful and difficult journey.