A Catherine Henry Lawyers presentation by Alan Wright: Senior Associate Accredited Specialist, Family Law

1. Property settlement
A presentation by Alan Wright: Senior Associate
Accredited Specialist, Family Law

2. o Time limit to file application
• Married - within 12 months of divorce order
• De facto relationship - 2 years of separation
o De facto - at least 2 years in total. Exceptions:
• Child to relationship
• Substantial contribution & injustice
• Relationship is registered
o Law regarding division of property the same
Marriage or de facto relationship

3. 5 steps
o The law sets out 5 steps in division of property:
• Should any Order be made?
• Identify the assets and liabilities
• Assess the contributions
• Assess future needs
• Ensure outcome is “just and equitable”

4. Identify assets
o The assets owned jointly or by either party need to
be identified
o The liabilities also need to be identified
o Normally divide into 2 pools:
• Non-super assets/liabilities
• Super

5. Valuations
o Values need to be known
o Real estate:
• appraisals by real estate agents or
• a valuation by a registered valuer
o Car - go to website such as www.redbook.com.au
o Superannuation – need up to date statement

6. Disclosure
o Obligation to make full and frank disclosure
o Providing to the other party documents such as super
statement, bank statement, etc.
o Ongoing obligation
o Non-compliance:
• Costs
• Adverse orders
• Orders set aside

7. Contributions
o An assessment of contributions by each party.
o What each person brought to the relationship
o What has happened during the relationship
• Earning an income
• Looking after children
• Renovating a house
• Receiving a lump sum e.g. an inheritance
• Home making
o It includes contributions post separation

8. Future needs
o An assessment of matters listed in Section 75(2)
(marriage) or Section 90SF(3) (de facto)
o Sometimes referred as “the future needs” of each
party
o Common factors are:
• Arrangements for care of children
• Disparity in earning capacity

9. Settlement
o Try to reach an agreement by negotiation or
mediation
o Settlement should be formalised by one of the
following:
• Consent Orders made by the Family Court
• Financial Agreement

10. Settlement (continued)
o Consent Orders or Financial Agreement provide:
• Finality
• Stamp duty relief

11. Court proceedings
o If agreement can’t be reached then court proceedings
need to be commenced
o Federal Circuit Court or Family Court
o Significant delays
o Legal Costs

12. Court proceedings (continued)
o At least three court appearances:
• Directions Hearing
• Conciliation Conference
• Trial

13. Meet John & Sarah
• Lived together 1995
• Married 2000
• Separated 2015
Luke born in 2009
(7 years old)
Alisha born in 2010
(6 years old)
o No significant assets when commenced living together

14. Background
o John worked full time - currently earning $100,000
p.a.
o Sarah worked full time until Luke was born
• For 5 years after Luke born combination
maternity leave/part-time. Then returned to full
time work. Currently earns $70,000 p.a.
o Neither received any substantial lump sums

15. Background (continued)
o Both played important roles in raising the children.
• Sarah primary responsibility 5 years maternity
leave/part-time.
• John and Sarah have shared the domestic duties
o The arrangements for the children are:
• They live with Sarah
• During school term they spend every alternate
weekend with John from Friday afternoon to
Monday morning
• They spend half of school holidays with John

16. John & Sarah: assets
o The non-superannuation assets are:
• Home $600,000
• Less mortgage $200,000
• Total $400,000

17. John & Sarah assets (continued)
• Home equity $400,000
• John’s car $15,000
• Sarah’s car $20,000
• Savings $20,000
• Contents $5,000
• Shares $40,000

18. John & Sarah assets (continued)
o The superannuation entitlements are:
• John $200,000
• Sarah $100,000
• Total $300,000

19. John & Sarah
assessment of contributions
o John and Sarah have made equal contributions
noting:
• No significant initial contributions
• No lump sums during relationship

20. John & Sarah
assessing the future needs
o Sarah has the primary care of the children resulting in
an adjustment in her favour
o John has higher income than Sarah but difference
may not be sufficient to cause a further adjustment
o Adjustment to Sarah 5 – 10 %

21. John & Sarah: their agreement
Division of non-super agreed: 40% John & 60% Sarah
Sarah will receive:
Home (equity) $400,000
Car $20,000
Contents $5,000
Less payment to John $125,000
TOTAL $300,000

22. John & Sarah: their agreement
(continued)
John will receive:
Car $15,000
Savings $20,000
Shares $40,000
Payment from Sarah $125,000
TOTAL $200,000

23. John & Sarah: their agreement
(continued)
o Equally divide super, $50,000 from John’s to Sarah’s
super - each receive $150,000 in super
o John and Sarah could agree that no super split but
Sarah to pay less to John e.g. $75,000 instead of
$125,000

24. Spousal maintenance
o Does person applying have need?
o Assess their earning capacity and reasonable
expenses.
o Then look at capacity of the other person to make
payment
o What is their earning capacity?
o What are their reasonable expenses?

25. Divorce
o Only ground for divorce is that “the marriage has
broken down irretrievably”
o Irretrievable breakdown established by being
separated for 12 months
o Separation under the one roof is still separation
o Sole applications v joint applications

26. Will
o Everyone should have an up to date Will
o Do not wait for divorce, property settlement or
anything else

27. Contact us