Property and Financial Matters

For married, de facto and same sex couples

Since 1 March 2009, couples (including those in same sex relationships) who are parties to an eligible de facto relationship can apply to the Family Court or Federal Circuit Court to have their financial dispute determined in the same way as a couple who is legally married.

Following the breakdown of a marriage or de facto relationship, you will need to consider how to divide the asset pool, superannuation and potential entitlements to spousal maintenance and child support.

Both parties are required to make full and frank disclosure to the other. Australian Family Law requires the parties to make a genuine attempt to negotiate an agreement before applying to the Court. Where both parties can agree to the division of asset pool – Consent Orders may be filed with the Court reflecting the agreement reached.

This can be a very cost effective and an efficient way to resolve division of property.

Disputed Entitlements

Where the parties cannot agree to the division of the asset pool and it becomes necessary to make an application to the Court, the Court will consider the following:

  1. The value of asset pool;
  2. Whether it is just & equitable to make orders adjusting the parties legal and equitable interests in property;
  3. What the parties have contributed financially and non-financially to the asset pool;
  4. What the parties have contributed as homemaker and parent;
  5. What are the future needs of the parties, for example, age, health, earning capacity and care of children.

What is defined as property?

Property is essentially any asset. Property that can be subject to a Court Order includes real estate, money in bank accounts, shares, superannuation, cars, boats, etc. It can also include special contributions such as inheritances, compensation payments and windfalls.

Superannuation is treated as a different type of property and can be subject to superannuation splitting.

What is Spousal Maintenance

Under the Family Law Act, a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own (reasonable) expenses from their personal income or assets.

If your partner is unable to adequately support their reasonable living expenses and you have capacity to, your former partner may apply for spousal maintenance.

Child Support

Child support is purely concerned with the financial support and maintenance of children. Parenting issues are dealt with separately.

If you agree about the child support arrangements, you can make your own arrangements for child support. You do not have to apply to the Department of Human Services (Child Support) or the Federal Circuit Court when making arrangements for child support. You can also include the agreement in a parenting plan.

If you do not agree about the child support arrangements you must apply to the Department of Human Services (Child Support) for assistance. You cannot apply to the Family Court or the Federal Circuit Court for this.

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