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Property Division - How Does the Family Court Provide a Fair Outcome for Both Parties?


How Does the Court Decide?

The way in which the Family Court and the Federal Circuit Court of Australia decide property cases requires the Court to take into consideration the provisions of section 79(4) of the Family Law Act 1975 and also section 75(2) of the Family Court Act 1975.  The Court must divide property between husband and wife and partners so that the outcome is fair and equitable.  The Court will look at the contributions made by each of the parties to the acquisition, maintenance and improvement of matrimonial assets (and this relates to direct financial contributions and non-financial contributions).  Contributions to the welfare of the family are also considered.  These contribution issues are discussed elsewhere on our website.

Over and above, taking into account the contributions made by each party the Court needs to look at the factors set out in section 75(2) of the Act.  We wish to highlight some important factors that the Court takes into account which can result in an adjustment (extra benefit) to one party.

The Court will take into account all of the factors set out in this section if they apply.  The following sections are most likely to result in an adjustment:-

  1. The age and state of health of the parties. 

The state of the health of each party may have a direct relationship with his or her earning capacity and the final outcome of the proceedings.  It does not matter that the state of your health arose prior to the marriage.  In certain cases and circumstances, a party’s health may warrant a transfer of ownership of the property by way of lump sum maintenance and property settlement.

  1. The income, property and financial resources of each of the parties and their capacity for appropriate gainful employment. 

It is often the case that one party might not be employed or might be under employed or have an income which is significantly lower than the other party.  The capacity for future employment by reason of age is also significant.

  1. Whether either party has care and control of the child of the marriage who has not attained the age of 18 years.

The very significant factor requiring the Court to consider an adjustment is whether or not the children live with one party.  It is often a consequence that one party cannot work in paid employment or work to full capacity in paid employment and this needs to be taken into account by the Court.

  1. The commitments of each of the parties that are necessary to enable that party to support him or herself or a child of another person that a party has a duty to maintain.
  2. The responsibilities of either party to support any other person.
  3. The eligibility of either party for a pension or other government allowance but there are restrictions as to the extent to which and when a Court can take this into account. 
  4. Whether one of the parties has re-partnered and was cohabiting with another person.  
  5. Any other fact or circumstances which the Court feels should be taken into account.

This is an uncertain area but the result is often that there is an adjustment to the advantage of one party over and above the amount that they would have received had the Court simply looked at contributions by them to the acquisition, maintenance and improvement of matrimonial assets.

Please do not hesitate to contact Richard Watson our experienced Family Law Solicitor or his assistance Shereen Da Gloria who can assist in you achieving a fair and equitable property settlement and spare you the angst associated with this very important aspect of separation.

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