If you and your partner are separating, you need to consider what is to happen in relation to the division of any property that you own. The Family Law Act provides for property settlements between couples who are, or have been, married and in Western Australia the Family Court Act makes provisions for property settlement for couples who have been in a de facto relationship.
For the purposes of the Family Court Act, a de facto relationship includes a relationship between two people of the same sex.
If both parties reach an agreement as to how the property will be divided, how can they ensure their agreement is binding and enforceable?
In many cases parties are able to reach an agreement about a property settlement with the assistance of their lawyers. If they do, they can make the application for consent orders which is a relatively simple and inexpensive procedure. If consent orders are made then the partied have the benefit of knowing that their agreement is binding and enforceable.
If you can’t reach an agreement with your former partner as to a property settlement then you will need to file an application for property settlement in the appropriate Court. Most property settlement applications filed in Court are settled without a decision being made by the Court through negotiation or mediation.
If a settlement is not achieved then the Court will make a decision as to how the property of the couple should be divided after a hearing before a judge or other officer of the Court.
Under the Family Law Act and the Family Court Act, the steps involved in an application for property settlement are:
- Identifying and valuing the assets, liabilities and financial resources of the parties. This includes all assets, liabilities and financial resources, whenever and however acquired. In many cases this is a simple part of the process. However, in some case, particularly those involving businesses, the valuation can be complex.
- Assessment of the contribution made by the parties during their relationship. These include:
- Direct and indirect financial contributions to the property of the parties;
- Direct and indirect non-financial contributions to the property of the parties; and
- Contributions to the welfare of the family including contributions in the capacity of homemaker or parent.
- Assessing future needs of each of the parties. The Court must consider such things as:
- The age and state of health of each of the parties;
- The income, property and financial resources of each of the parties and their capacity for employment;
- Who has the care of any child of the relationship under the age of 18 years;
- Commitments necessary to enable a party to support himself or herself or any other person that the party has a duty to maintain;
- The standard of living that is reasonable in the circumstances;
- The extent to which earning capacity of a party has been affected by the relationship.
- Is the proposed division of property fair on both parties? When assessing steps 1-3, the Court must then decide whether there ought to be an adjustment in favour of one or other of the partied to compensate for any difference in their future circumstances.