The Family Court is empowered to make any order which it considers appropriate altering the interests of either the husband or the wife in any property owned by either or both of them. Set out below are some of the matters that the Court will consider. It is not intended to be exhaustive and you should understand that each case will be determined on its merits and that every person considering separation ought to seek professional guidance from a solicitor who practises in the Family Law jurisdiction.

The property which the Court considers is that which has been brought into the marriage or acquired during the marriage or after separation. The property brought into the relationship by either party is treated somewhat differently than that acquired during the relationship and the Court usually gives credit or makes an allowance reflecting that contribution. It does not really matter in whose name a particular asset stands or whether the asset is held by a company or trust. If the asset is in the effective control of one party or the other it will be taken into account by the Court.

Property comprises all assets such as houses, land, shares, money in the bank, furniture, motor vehicles, insurance policies and the like. A superannuation entitlement is not technically property but can be treated like property and can be split between the parties. Both parties are obliged to be totally frank in making disclosure of their assets.

In deciding what Order to make the Court takes into account numerous factors which include:

- The direct or indirect financial contribution made by either party towards the acquisition, conservation or improvement of an asset. An example would be coming into the marriage with an interest in real estate..

- The contribution other than financial contribution made directly by a party to the acquisition conservation or improvement of an asset. For example, a party who paints the house makes a non-financial contribution.

- The contribution made by a party to the welfare of the family. This includes the role played by one or other partners as the homemaker and parent.

- The effect of any proposed order on the earning capacity of either party.

- A whole range of matters which are directed more to the future needs of each party. Included here are issues such as the state of health of each party, the question of whether one or other party has an obligation to support a child of the marriage and the ability of each party to obtain to continue work.

- The Court will also consider the fairness and equity of the proposed division of assets

An application for property settlement can be made immediately following separation and it is not necessary to wait until divorce. However, once a divorce has been obtained the application for property must be made within twelve months of the date of the decree absolute (a month after the divorce hearing). If the application is not lodged within that time a person must prove to a Court that there are special circumstances which allow the application to be made late.

Reaching agreement as to division of property

Generally speaking, when lawyers are consulted about property settlement their initial aim is to have the parties reach an agreement on the settlement without the need to issue proceedings through the Court.

If that can be done there is a considerable saving in both time and cost not to mention a significantly lower level of stress for all concerned. If agreement is reached it can be evidenced by Consent Orders or a Binding Financial Agreement [include link to BFA page].

Consent Orders are obtained by a very straight forward procedure which does not involve either party or their solicitors actually attending Court. It is important that the agreement is evidenced in writing, particularly where the parties enter into a transfer of property as part of the property settlement (such as where one transfers his or her interest in the home to the other) as stamp duty liability is waived.

Court proceedings

In the event that the parties are unable to reach an agreement one or other of them will issue an application to the Court and at that time also file a statement setting out their financial circumstances.

Once the application has been issued by the Court, copies of the documents are served on the other party who should then file a response together with a statement of their financial circumstances.

The parties are required to attend a Conciliation Conference, which is an occasion when the Registrar and the legal representatives assist the parties in making a concerted effort to reach a settlement. If a settlement is reached at that time often the details can be written out in the form of Court Orders and the Registrar conducting the conference will make the Orders then and there, finalising the matter. Otherwise the Orders can be prepared and signed over the ensuing days and forwarded to the Court.

If the conference is unsuccessful either at that time or at a later date the Registrar will give directions for the filing of material and other things required to be done to prepare the matter for hearing and will list the matter for hearing. The hearing is conducted before a Judge and each party and his or her witnesses give evidence.

A lot of property matters are settled at or as a direct result of the conciliation conference. Nonetheless, if the parties can reach an agreement at any time the matter can generally be finalised immediately.

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