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The valuation of assets and liabilities is a fundamental and necessary step that needs to be achieved in order to put a party to a family law property matter in a position to ascertain the value of the asset pool.
This is required to achieve settlement (or if they cannot agree and settle) for the Family Court or Federal Circuit Court of Australia to be aware of the extent and nature of the assets and liabilities of each of the parties to enable the Court to decide on how assets and liabilities are to be divided and in what proportion.
There is a common misconception that the Court will look at the value of the assets and the liabilities as at the date of separation.
This is not correct.
If the case is heard by the Court the Court will look at the value of the assets (and liabilities) at the date of the hearing and not at the date of separation.
There will often be a significant time gap between separation and the date upon which the Court hears the property case. This can cause unfairness or distortion in relation to the outcome of property proceedings. There are significant delays in the Court system at present and it could be some years after separation before a Court hears the matter and decides on the property division. It is often the case that one party may be living in the former matrimonial home and one (either the one that is living in the property or not living in the property) paying the mortgage in respect of that property. The historical fact is that property prices tend to increase and the actual payment of the mortgage increases equity in the property.
When a Court decides on how to divide a property it will look at the value of the property and the amount of the liabilities as at the date upon which the matter is heard and will not adjust and divide on the basis of values for assets and the amount of liabilities as they stood at the time of separation. Parties should be aware that this is the approach taken by the Court.
The Court does look at post separation contributions by both parties to the acquisition, maintenance and improvement of properties however there is a risk that the party who is effectively shouldering the burden of making mortgage payments or working to maintain and increase the value of a business may not be properly compensated at Final Hearing.
Careful consideration should be given to documenting the contributions made after separation so that the Court has clear and concise evidence as to what contributions were made. Consideration should also be given to obtaining historical property values so that the extent and significance of the contributions made by one party after separation can be properly taken into account.
Please do not hesitate to contact Richard Watson Principal or his assistant Shereen Da Gloria should you have any queries or concerns in relation to contributions made by you after separation and its impact on the outcome of your property settlement.
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