If you cannot reach an agreement with your ex-partner about the division of property from your relationship or spousal maintenance, you may have to apply to the Court for property or financial Orders.
The Family Law Act 1975 (the Act) sets out what the Court will consider when determining how property should be divided.
If you are applying to Court for property or financial Orders, you should get legal advice.
The Family Law Act applies to both married couples and defacto couples (including same-sex couples). Decisions about property and spousal maintenance are guided by Part VIII (8) (for married couples and VIIIAB (for defacto couples) of the Act. If your case is listed in the Federal Circuit Court, you may have to get a copy of the Federal Circuit Court of Australia Act 1999. Both the Family Law Act and the Federal Circuit Court Act can be found at a law library or on the Comlaw website. Section 80 of the Family Law Act sets out the property and spousal maintenance Orders the Court can make for married couples. Section 90SS of the Family Law Act sets out the property and spousal maintenance Orders the Court can make for defacto couples.
If you are married, you can apply for a property settlement or spousal maintenance at any time before your divorce. Once your divorce is final, you must file your property or spousal maintenance application within 12 months. The Court can extend the 12 month time limit, but will only do this if there is good reason. If 12 months have passed, you must get permission of the Court to file your property or spousal maintenance application. Defacto (including same-sex) partners must file their property or spousal maintenance application within 2 years of the relationship ending. If 2 years have passed, you must get permission of the Court to file your property or spousal maintenance application. The Court will only do this if there is good reason.
The Courts also make interim property Orders. Interim property Orders can include:
- sole occupancy Order – where you want to stay in the family home without your ex-partner.
- urgent injunction – where you stop your ex-partner from selling or disposing of assets or ‘freezing’ money (stopping money being used) in a bank account or money about to be received from a pay-out of an insurance policy or superannuation.
- periodic spousal maintenance – where you need the financial support of your ex-partner until a final property settlement can be reached.
Federal Circuit Court Practice Direction No 2 of 2017 made important changes to the management of interim proceedings in the Federal Circuit Court, including limits on the length of Affidavits (10 pages) and the number of annexures (5) to Affidavits filed in interim proceedings.
A caveat is a warning to a third party dealing with the land, letting them know that you have a financial interest in the land. To get a caveat you must satisfy the Registrar of Titles that your interest in the land should be protected. If you lodge a caveat incorrectly, you may have to pay costs. In Queensland a caveat will lapse (be removed from title) unless the caveator (the person who lodged the caveat) commences Court proceedings to protect their caveatable interest within 3 months of lodgement of the caveat. This 3 month period can be shortened if a person affected by the caveat gives the caveator written notice requiring them to commence proceedings. If the caveator receives such notice and does not commence proceedings and notify the Registrar of Titles that they have done so within 14 days of service of the notice, the caveat will lapse.
The Courts can make Orders and injunctions that affect third parties (those who are not part of a marriage, for example, banks or relatives). A Court can make an Order stopping a bank from selling a house. Orders can also be made which transfer responsibility for a debt from one partner to another. The third party must be served all documents, even if you and your ex-partner have agreed to sort things out in a particular way. This gives the third party the chance to be involved in the case. Third parties are now able to join proceedings regarding defacto former couples (including same-sex).
If you have a family law case and you go bankrupt, the Family Courts can deal with your bankruptcy. Bankruptcy can be dealt with at the same time as property or spousal maintenance. It does not matter if you are bankrupt at the start or become bankrupt during the case. Tell the Court and everyone involved in your case if you are bankrupt or in a personal insolvency agreement. You must also tell your bankruptcy trustee if you are involved in any property or spousal maintenance cases. The cross-over of family law and bankruptcy law is complicated.
Steps in a property case
Step 1 – Is it just and equitable to make an Order?
The Court will only make an Order it considers to be ‘just and equitable’ (fair) according to the requirements of the Family Law Act. In most family law property cases it will be easy to convince the Court that an Order is needed to do justice and equity. Usually, separation and ending of the relationships should mean it is just and equitable for all parties that their property is divided. Once satisfied an Order is needed, the Court must consider if the Orders you are asking for are fair for both of you.
Step 2 – Identify and value the property of the parties
Give the Court a detailed list of all your property. This is usually done in a financial statement. See dividing your property fairly for the types of assets which may be included. Collect all documents that prove the financial history of your marriage and your current circumstances. These can include group certificates, tax returns, bank statements, certificates of title, superannuation and insurance policies. Once you have a list of property, calculate its value. It may be useful to get property valuations. You can get some idea of the value of furniture and cars by looking at prices for second-hand goods. If you cannot agree on the value, and the case goes to final trial, you must get sworn valuations by an independent assessor. The Court takes the market value of the property at the time when the case goes to Court, not at the time of separation. When writing out your financial details make sure that they are accurate. You have to swear or affirm that they are correct. There can be serious problems later in your case if your financial statement is inaccurate, misleading or incomplete.
It is important that you get accurate information about the value of your and your ex-partner’s superannuation funds. To do this, you need to fill out some forms. The forms are available from the Court or by calling the Family Court National Enquiry Line. You can also download them from the Family Court website along with other information about the superannuation laws. More information about superannuation laws is available on the Commonwealth Attorney-General’s Department website.
Step 3 – Contributions towards the property
Once the property is identified and its value is worked out, the Court can consider the contributions made by each party. Contributions means what has been offered or given to the property. The Court looks at the direct financial and indirect contributions to the property. Indirect contributions include things done to help the family, including any work as a homemaker or parent. For example, staying home caring for children is considered to be just as valuable as income. Indirect contributions also include anything done to help get property or to maintain or improve it. For example, gardening or painting the house.
Step 4 – Apply the law to your case
After taking into account the contributions made by the parties, the Court looks at the effect of any proposed Order on you and your ex-partner. The Court also looks at any other current Orders and if there is child support involved. There is also a list of other factors which the Court must consider. These include:
- how much you and the other person can earn in the future.
- your and the other person’s age and health.
- who cares for the children.
- responsibility for supporting other people.
- how long your relationship lasted.
- child support.
- any other factors affecting fairness.
It is important that you go through the relevant factors in:
- subsections 79(4)(d) to (g), and subsection 75(2) – for married couples.
- subsections 90SM(4)(d) to (g) and 90SF(3) – for defacto couples and look at the factors that are relevant to your case.
Think about whether your proposed Orders are fair to both parties. Ask the Court for what you want by making an Affidavit that covers the law that relates to your case.
Applying for spousal maintenance
Spousal maintenance is money paid by people to their ex-partners when they cannot support themselves. Spousal maintenance is not an automatic right. The Court considers the need of the applicant and the respondent’s ability to pay. See:
- Section 72 – for married couples.
- Section 90F(1) – for defacto couples.
There are a number of other sections under Parts VIII (8) and VIIIAB of the Act that may be relevant to this type of case. You should also look at Rule 4.15 of the Family Law Rules. This rule sets out the evidence each party must bring to the Court in spousal maintenance cases. Most law libraries have a copy of the Act and Rules or you can see the on the Comlaw website.
Sometimes the Court may order that one party pay some or all of the other party’s costs. This might be for travel or lost wages. This does not happen very often. See section 117 of the Act for when this might happen.
Federal Circuit Court Practice Direction No 2 of 2017 made important changes to the management of interim proceedings in the Federal Circuit Court, including limits on the length of Affidavits (10 pages) and the number of annexures (5) to Affidavits filed in interim proceedings. Failure to comply with the Practice Direction may result in costs Orders being made.
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