Matrimonial Property Settlement

Orders can be made finalising property matters between parties to a marriage under section 79 of the Family Law Act 1975.

Relevant factors

In considering what order (if any) should be made under section 79 in property settlement proceedings, the court must:

1. identify the existing legal and equitable rights and interests in any property of the parties to the marriage or either of them; and
2. identify the existing liabilities of the parties to the marriage or either of them; and
3. take into account the following considerations, so far as they are relevant:
   a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage ;
   (b) the nonfinancial contributions (other than a contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them;
   (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
   (ca) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of a party to the marriage to make contributions ;
   (d) the effect of any proposed order upon the earning capacity of either party to the marriage;
   (f) any other order made under this Act affecting a party to the marriage or a child of the marriage;
   (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided for a child of the marriage.
4. take into account other considerations, so far as they are relevant, including the following:
   (a) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in this subsection;
   (b) the age and state of health of each of the parties to the marriage;
   (c) the income, property and financial resources of each of the parties to the marriage and the physical and mental capacity of each of them for appropriate gainful employment;
   (d) the effect of any material wastage, caused intentionally or recklessly by a party to the marriage, of property or financial resources of either of the parties to the marriage or both of them;
   (e) any liabilities incurred by either of the parties to the marriage or both of them, including the nature of the liabilities and the circumstances relating to them;
   (f) the extent to which either party to the marriage has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child

It is often believed that property settlement involves a complicated accounting exercise about who spend money on what during the relationship, however that is incorrect. The Court usually divides the property pool according to the factors mentioned above which it considers what order would be just and equitable in the circumstances.

Pre-action procedures & disclosure

Rule 4.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that before starting a proceeding, each prospective party to the proceeding must ordinarily comply with the pre-action procedures. The court regards the requirements set out in the pre-action procedures as the standard and appropriate approach for a person to take before filing an application in a court.

If a proceeding is subsequently started, the court may consider whether these requirements have been met and, if not, any consequences for non-compliance. The court may take into account compliance and non-compliance with the pre-action procedures when it is making orders about case management and considering orders for costs.

The pre-action procedures provide that each prospective party to a proceeding in the Federal Circuit and Family Court of Australia is required to make a genuine effort to resolve the dispute before filing an application to start proceedings by following the pre-action procedures.

Under the pre-action procedures, you must make full and frank disclosure of all information relevant to the issues in dispute in a timely manner including the exchange copies of documents in your possession or control relevant to an issue in dispute as soon as practicable on learning of the dispute.

At all stages during the pre-action procedures and, if a proceeding is started, during the conduct of the proceedings, the parties must have regard to the following:

(a) the best interests of any child, including the need to protect and safeguard the child against risk or harm;
(b) facilitating a meaningful relationship between a parent and the child, if appropriate, and the benefits of effective co-parenting;
(c) the potential damage to a child involved in a dispute between the parents, particularly if the child is encouraged to take sides or take part in the dispute;
(d) the best way of exploring options for settlement, identifying the issues as soon as possible, and seeking resolution of them;
(e) the need to avoid protracted, unnecessary, hostile and inflammatory exchanges;
(f) the impact of correspondence on the intended reader (in particular, on the parties);
(g) the need to seek only orders that are reasonably achievable on the evidence and that are consistent with the current law;
(h) the principle of proportionality and the need to control costs because it is unacceptable for the costs of any proceeding to be disproportionate to the financial value of the subject matter of the dispute;
(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.

Contact Us

Sterling Law can be contacted by phone on 07 3667 8213, or by email: office@sterlinglawqld.com