Sections 79 and 90SM of the Family Law Act 1975 give the Court powers to make orders adjusting financial and property settlements between parties to a marriage and parties to a de facto or same sex relationship.
In determining an application for division of property the Court adopts a four step process, which consists briefly of:
Step 1 Identifies the property available for distribution.
Step 2 Identifies and assesses the respective financial and non-financial, direct and indirect contributions.
Step 3 Identifies and assesses the “future needs” factors.
Step 4 Considering if making orders for property adjustment would be just and equitable.
The second step is to compile an accurate list of assets and liabilities and their values.
The property available for distribution in family law proceedings is “the property of the parties to the marriage or either of them”. Accordingly, the property is not just limited to property in the joint names of the parties but also the property that is in each of the parties’ sole names. This includes liabilities and may also include any interest that either party may have in a family trust or any other trust of which a party is a beneficiary.
The third step is to assess the contributions made by the parties towards the acquisition, conservation or improvement of your assets.
The fourth step is to consider whether there should be any adjustments in favour of either of the parties on the basis of “future needs”.
The thresholds that gauge whether an adjustment may be made in favour of one party for future needs factors include, but are not limited to:
The overarching consideration is whether or not it is fair and equitable in the circumstances of your case to make any adjustment to the way the
property is currently held.