How are property issues resolved?
In most family law matters, the kind of result that can be realistically expected in the courtroom will tend to strongly influence the results that can be achieved via negotiation. This is because there is a reasonable probability that the kind of result likely to occur in the court can be achieved in the first two steps in the court’s process (usually) relatively efficiently and cost-effectively and because the chances of resolving a matter in those first two steps can be significantly increased with proper preparation (see Case assessment conference and Conciliation conference).
When making an order concerning the property (net assets) of the parties or either of them under section 79 of the Family Law Act, the court will (in brief summary) consider those things listed in sub-section 79(4):
- each party’s direct and indirect financial contributions;
- each party’s non-financial contributions (including parenting and domestic contributions);
- the effect of any proposed order or declaration;
- the parties ages and health;
- the income, property, financial resources and earning capacity of each of the parties;
- care of children;
- commitments necessary for the support of each party, children or other persons;
- social security entitlements;
- living standards;
- education or training issues;
- potential effects on creditors;
- duration of the marriage;
- parenting roles;
- financial circumstance relating to cohabitation (with a third party);
- child support;
- the terms of any relevant financial agreement;
- any other circumstance the court thinks justice requires be taken into account;
and sub-section 79(2):
- whether it is just and equitable to make the order;
(not necessarily in that order – the requirement under sub-section 79(2) being one that permeates the entire process).
The above is necessarily a very brief and general summary of what can be a complex process. There are many important cases that deal with family law property settlement. While we like to talk about those cases, it is difficult to know where to start or what particular aspects or topics to cover in notes like these. It is probably better to call us on 02 9222 8000 to ask about those aspects or topics that relate to your particular circumstances.