The Family Law Act provides for the division of property between married and de facto (including same sex) couples.
The law of property division can be very complex. Hede Byrne and Hall will assist you to navigate the approach taken by the Court, including the following considerations:
- Whether you or your partner/spouse are eligible for any property distribution from a relationship;
- The formulation of the pool of assets (and liabilities) for division between the parties;
- The financial contributions made by each party including any assets held at the commencement of the relationship, as well as earnings, inheritances or other significant funds provided by family, and lottery wins;
- The non financial contributions made by each party including maintenance of the home, role as homemaker and responsibility of the children care.
- Any relevant conduct of the parties including excessive waste of matrimonial funds;
- The future needs of each party including responsibilities of the children, medical issues, prospects of inheritance and earning capacity.
Hede Byrne and Hall can assist you with determining the best avenue for resolution, whether that is by way of Consent Orders, Binding Financial Agreement or Court Proceedings.
In some circumstances, a married or de facto spouse may be required to pay spousal maintenance to their spouse after separation. Whether spousal maintenance is paid depends on one party’s capacity to pay and the other party’s need for financial support.
When considering whether to make an order for spousal maintenance the court considers the following:
- The age and state of health of each party;
- The income, property and financial resources of each party and their employment capacity;
- Whether either party has care of a child of the marriage under 18 years;
- The financial needs and obligations of each party;
- The responsibility of each party to support another person;
- The reasonable standard of living that a party has become accustomed to;
- Whether the receipt of maintenance would assist a party to undertake education or training to increase earning capacity;
- The extent to which the party has contributed to the property and financial resources, income and earning capacity;
- The duration of the relationship; and
- Any fact or circumstance which the Court considers relevant.
Spousal maintenance can be paid by way of periodic or lump sum payments.
Binding Financial Agreements
A Binding Financial Agreement may be made in contemplation of (including pre-nuptial agreements), during, or after marriage or a de facto relationship. The agreement deals with how property and financial resources will be dealt with in the event of a breakdown of the relationship. It may also detail the spousal maintenance (if any) to be paid to either party.
In determining whether you need an agreement, you may consider the following:-
- Whether one party has significantly more assets than the other;
- Whether one party has significant debts;
- The income and financial resources available to each party;
- The requirements of a party to a case for children; and
- The future needs of each part and their children (as applicable).
To ensure a Binding Financial Agreement is legally enforceable:
- The agreement must be in writing and signed by all parties;
- Each party must receive independent legal advice; and
- No circumstances exist (such as fraud, duress, unconscionable conduct or incomplete disclosure) which would cause the Court to set the agreement aside in the future.