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In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court and will be decided on the basis of need. The settlement reached becomes legally binding and enforceable by the courts.
A property settlement can always be reached between two parties by agreement. If the two parties cannot agree on how to divide the property, an application can be made to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court, or to the Federal Magistrates Court where a property dispute is worth less than $700,000.
Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. You may apply to the court to make your application outside of this time period.
De facto and same sex partners can make an application for a property settlement under state law. In New South Wales this application can be made under the Property (Relationships) Act 1984 (NSW). A de facto relationship only legally exists if a relationship has been continuing for at least two years. If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. An application for a property settlement under this act can be made in the Supreme Court, District Court or Local Court, depending on the amount in question.
This application must be made within two years of the end of the relationship.
In making an order for property settlement the total pool of assets of the parties is calculated by the court. This calculation will be made up of assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account.
The division of assets between the parties involves looking at the contributions each party has made to the asset pool and the future needs of the parties. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.
If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.
A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once. In the case of a de facto relationship there are limited rights to claim spousal maintenance.
If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied. If a party is not complying with the orders made, an application can be made to the court for enforcement. The court will then decide whether an order is needed to enforce the existing order.
A family law property settlement is an important process to go through after the breakdown of a marriage or a de facto relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.
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