Property settlement is the term given to the division of assets and liabilities of a relationship following a breakdown. There is a four-step approach that the Court takes before it makes a determination about how the property of a relationship should be divided. As an initial step, the Court makes a decision about whether or not it is just and equitable to even make orders for a property settlement. The court must conclude that it would be unjust or unfair to leave property rights unaltered before turning to the remaining steps.
- 1. The Court identifies all of the assets of the relationship (including property, investments, superannuation and business interests) and all of the liabilities.
- 2. The court then analyses the contributions made by both parties toward those assets (including financial contributions and those made as homemaker and parent).
- 3. The court then considers what each party might need for the future and makes any adjustment to reflect this. The court might consider the age of each party, their respective states of health, their capacity for employment, and whether or not either party has the care of young children.
- 4. The court might then make a further adjustment to ensure an outcome that is just and equitable.
What sort of ‘contributions’ are taken into consideration?
It is important to note that financial contributions, such as wages, do not generally carry any more weight than do non-financial contributions, such as the rearing of children.
Commencing Court Proceedings
Along with an Initiating Application, which details the Orders you are asking the Court to make, you will need to file with the Court a Financial Statement, which outlines your financial position, and an affidavit, which explains to the Court why you are seeking the Orders that you are seeking. Your former partner then files similar documents.
Once a Court application has been filed, the matter is given a first ‘return date’, which provides the Court with an opportunity to hear from both parties.
The Final Hearing
There are many things that need to be done in preparation for a final hearing. Most of the time, the documents before the court need to be updated and additional affidavits are often prepared. A barrister is typically briefed to run the hearing on your behalf.
Additional documents are directed to be filed. Subpoenas are often issued to third parties so that evidence the parties do not themselves have access to can be put before the Court.
The judge will often adjourn the matter following the hearing to prepare a judgment in relation to the case and it is rare that a judgment is handed down immediately.