- Children in Family Law Disputes
- Child Abuse or Family Violence
- DNA Testing
- Changing the Child’s Name
- Relocation or Taking a Child Overseas
- Kidnapping, Airport Watch List and Recovery Orders
- Property Issues
- Consent Orders
- Binding Financial Agreements
Property Issues in Family Law
The Family Law Courts exercises a five-step process in determining how the property is divided between the parties:
- Determining whether it is just and equitable to intervene in the matter and make a property order (known as the Stanford v Stanford requirement);
- Identifying the assets, liabilities and financial resources of the parties;
- Assessing the contributions (be it financial, non-financial and those of a homemaker or parent) made by the parties;
- Evaluating each party’s future needs; and
- Whether in all the circumstances of the case, it is just and equitable to make the order.
It is essential that each party provides full and frank disclosure of all of their financial information to the other party prior to the commencement of any legal action. Failure to do so can result in the failing party paying the legal costs of the other side.
The second step is to assess the contributions made by the parties. Factors to take into account when assessing the contributions are:
- Whether direct financial contributions were made by a party to the marriage for the acquisition of property;
- Whether direct financial contributions were made to improve the property or to conserve it;
- Indirect financial contributions to acquire conserve or improve the property (e.g. one party pays the bills where the other party pays the mortgage; and
- Non-financial contributions e.g. where the wife carries out homemaker and parenting duties.
The Court has discretionary power in determining whether particular contributions should hold more weight over other factors. However, in circumstances where the husband goes off to work and the wife stays home to raise the kids, the Court generally considers the contributions to the asset pool to be equal.
The third step is determining the future needs of the parties such as:
- The age and state of health of each party;
- Their respective income, property and financial resources;
- Whether one party cares for any children under 18 years of age;
- The requirement to care for another person;
- The eligibility of a party to receive a pension or allowance from a superannuation fund inside or outside of Australia;
- Whether a party should expect a standard of living that is reasonable in all the circumstances;
- The extent to which maintenance will increase a party’s earning capacity by enabling a person to undertake a course of training;
- The extent to which a party, whose maintenance is under consideration, has contributed to the income, earning capacity, property and financial resources of the other party;
- The duration of the marriage and the extent to which it has affected the earning capacity of the party who seeks maintenance;
- The need to protect a party who wants to continue his or her role as parent; and
- The financial circumstances relating to the cohabitation with another person.
The final step for the Court is to determine whether it is just and equitable to make an order in all the circumstances of the case (section 79(2)).