If you don't have a Binding Financial Agreement and your marriage or de facto relationship breaks down, the Family Law Court will divide your property and assess spousal maintenance by applying the laws contained in either the Federal Family Law Act 1975 or the Western Australian Family Court Act 1997.
Apart from superannuation, much the same laws apply to both de facto and married spouses.
What does the Court consider when dividing up assets?
When deciding a property division dispute, the Family Court enters into a four step process, namely -
- Identify the nature and value of the property of the marriage/relationship.
- Look into the past to identify the financial and non-financial contributions of the parties and consider their entitlements, expressed as a percentage, based on their respective contributions.
- Consider whether there should be any adjustment to the parties entitlements in Step 2, based upon their present and future circumstances.
- Consider the effect of the findings in Step 2 and 3 and make an order that is just and equitable.
This procedure applies even though you may have reached agreement and lodge consent orders with the Family Court to be approved.
Although this process appears to be quite simple and logical, there can be a large number of factors to consider, some of them extremely complex, when effecting a property division. For example, what are the taxation consequences of your property division? How are gifts, inheritances and superannuation to be treated?
Why see Paterson & Dowding?
It is prudent to seek legal advice from a Family Law firm before attempting to negotiate any property matters with your spouse or partner. At Paterson and Dowding, we can provide you with practical and realistic advice to help ensure that you reach a water-tight and final agreement.
Alternatively, if you can't reach agreement, we have a team of lawyers with much court experience who can represent you in the Family Court.