Property
Q. Why does it seem that the wife gets all the property?
A. The court makes orders for property distribution in the light of the facts of the case. Wives will not get all the property simply because they are wives. The court also places weight on the contribution of one partner as homemaker and parent. This need not necessarily be the woman. The court is guided by the needs of both parties and the contributions they have made to the marital assets. Future needs will affect a party's entitlement eg: who has ongoing care of the children, is unable to work or has serious health problems.
Q. How can I get him/her out of the house?
A. It is not easy to exclude one partner from the former matrimonial home. The Family Law Act provides the Court with power to make a decision.
Q.How do courts decide property settlement?
With regard to property issues, the Family Law Courts determine the property settlement entitlements according to the following criteria.
The court determines the division of property on the basis of what is fair and equitable. When the court is considering a fair and equitable property settlement it is required to have regard to Section 79 (4) of the Family Law Act 1975 as amended. The court shall take into account the following:
a) The financial contribution made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of the property of the parties of the marriage.
b) The contribution (other than financial contribution) made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties of the marriage.
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 home-maker or parent.
d) The effect of any proposed order upon the earning capacity of either party to the marriage.
e) The matters referred to in sub-section 75(2) so far as they are relevant; and
f) Any other order made under this Act affecting a party to the marriage or a child of the marriage; and
g) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The Court is also required to address the matters referred to in sub-section 75 (2) of the Family Law Act as far as they are relevant. That section refers the court to the following: -
a. The age and state of health of each of the parties;
b. The income, property and financial resources of each of the parties and the physical and mental capacity of them for appropriate gainful employment;
c. Whether either party has the care or control of a child of the marriage who has not attained the age of eighteen years;
d. Commitments of each of the parties that are necessary to enable the parties to support:
i) Himself or herself; and,
ii) A child or another person that the party has a duty to maintain;
e. The responsibilities of either party to support any other person;
f. subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under –
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
And the rate of any such pension, allowance or benefit being paid to either party;
g. where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
h. the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
i. the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
j. the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
k. the need to protect a party who wishes to continue that party’s role as a parent;
l. if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
m. The terms of any order made or proposed to be made under section 79 in relation to the property of the parties.
n. any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage, and
o. any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p. The terms of any financial agreement that is binding on the parties.
For a detailed discussion of how these factors and criteria are applicable to your personal situation, please make an appointment with one of our family law solicitors.
