When a marriage or de facto relationship breaks down, the division of property and other assets becomes critically important to the financial future of the parties.
Some property settlements can be reasonably straightforward, while others can be quite complex.
The Family Court must divide the property, assets and financial resources of the parties in a way that is just and equitable. This requirement applies even if you and your former partner have reached an agreement and wish to lodge consent orders in the Family Court for approval.
If you do not have a Binding Financial Agreement and your marriage or de facto relationship breaks down, the Family Court will divide your property and assess spousal maintenance by applying the laws contained in the relevant Act. For parties that are married, the relevant Act is the Family Law Act 1975. In respect of de facto relationships, the relevant Act is the Family Court Act 1997.
When determining a property division dispute, the Court will generally:
- Identify the nature and value of the property of the relationship or marriage;
- Look into the past to identify the financial and non-financial contributions of the parties and consider their entitlements, expressed as a percentage, based on their respective contributions; and
- Consider whether there should be any adjustment to the parties’ contribution-based entitlements based upon their present and future circumstances.
As mentioned above, the Family Court will also consider whether it is just and equitable to make any Orders altering the parties’ interests in property.
Although the above process appears to be quite simple and logical, there are a large number of factors to consider, some of them extremely complex. For example:
- How should interests in trusts, companies, or partnerships be treated?
- What are the taxation consequences of your property division?
- How are gifts, inheritances and superannuation to be treated?
It is important to seek legal advice before attempting to negotiate with your spouse or partner.
If you are looking to speak to a family lawyer in Perth about property or asset division, please contact our office to speak to one of our experienced solicitors.