Property Matters – Assessment Process by the Court

08/11/2016

The Family Lawyers at Watson & Watson act for many clients and there are many enquiries as to the numerous aspects following separation.  One of the aspects, sometimes the most important and sometimes not the most important, is that of property settlement and the adjustment of the property following separation of a husband and wife to a marriage or parties to a de facto relationship (including same sex relationships).

Watson & Watson are experienced in considering the matter, obtaining the necessary information and analysing the information and advising as to the likely outcome of a fully contested matter.  Watson & Watson are experienced negotiators to assist in the resolution of the matter without a Court case and the unnecessary and expensive ongoing dispute with all its effects and costs including financial, emotional effects on relationships and the parties’ health.

Fundamentally the Court will divide matrimonial property between the parties to the marriage or relationship in accordance with the principles of Section 79 of the Family Law Act and may make adjustment in favour of one party including a party who is disadvantaged having regard to the matters referred to in Section 75(2) of the Family Law Act.

In effect the Court will consider all matters other than why the parties have separated.  The Family Court or Federal Circuit Court generally will approach the task of allocating the property by way of a four step approach, namely:

(a)      Step 1 – The Court identifies and values all the relevant property of the parties, which includes all property irrespective of its source or time of acquisition.

(b)      Step 2 – The Court has regard to the direct and indirect financial and non-financial contributions by each of the parties.  The Court should come to a determination as to the proper apportionment between the parties, usually based on percentage terms.

(c)       Step 3 – The Court is then required to have regard to Section 79(4), matters that are relevant.  This includes those matters listed in Section 75(2) which is incorporated by Section 79(4).  The Court is then required, after having regard to those matters to determine what adjustment if any should be made to the apportionment referred to above.

(d)      Step 4 – Having made the above adjustments the Court then makes an assessment as to whether the orders proposed as to the division of property between the parties and the effect of those is just and equitable.

The Court considers what are the appropriate orders, so as to achieve an equitable allocation of the property.  There are possible approaches of determining contributions made by the parties throughout the course of the relationship, namely:

(a)      Asset by asset approach, and/or

(b)      A global approach.

Usually the global approach is generally preferred by the Family Court Judges.

Having the knowledge as to the process is not alone sufficient to be able to properly advise you especially at an early stage as to what is the possible or likely outcome of the process.  At Watson & Watson experienced Family Lawyers, each Lawyer has had many years of experience in dealing with these matters.  If you wish to obtain any advice please contact Richard Watson or his Personal Assistant Shereen DaGloria so that we can assist you in this difficult aspect following separation.

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