Need help with Property Settlement?

In accordance with the provisions of the Family Law Act 1975 (Cth) and Family Court Act 1997 (WA) property proceedings in the Family Court of Western Australia are generally dealt with by adopting a five stage process.

It is important to keep in mind that this is not an exact science and the Judicial Officer involved may exercise a very wide discretion as conferred by the legislation.

1. Identification and valuation of all relevant assets and liabilities including equitable interests in property

The first step in the process is to identify and value all of the property of the parties to the relationship.

In addition to the assets and liabilities owned by each party in their own name, the asset pool will also include any interest either party may have in any trust, company, business or superannuation fund. The property or asset does not necessarily have to be in the name of the parties. The ultimate question is whether or not the parties have ‘control’ of the assets in question. That is, are they able to sell or otherwise deal with them?

2. Ascertain whether it is just and equitable to make a property settlement order

It is only after the Court has concluded that it is just and equitable (fair and reasonable) to make such orders that it should proceed to take what might be regarded as the third and fourth steps in the process.

3. Consideration of the contributions of each of the parties to the asset pool

The Court will then consider what contributions the parties have made to the property of the relationship. Contributions include, but are not limited to:

(a) direct and indirect financial contributions to the acquisition, conservation and improvement of assets;

(b) direct and indirect non – financial or physical contributions towards the acquisition, conservation or improvement of assets; and

(c) the contributions made in the role of homemaker and parent.

4. Consideration of section 75(2) factors

Next the Court will consider whether there are other factors which should give rise to an adjustment over and above those of a purely contributory nature. These are generally referred to as section 75(2) factors and include, but again are not limited to:

(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 each of them for appropriate gainful employment;

(c) the income earning capacity of the parties;

(d) whether either party has the care or control of a child under the age of eighteen;

(e) the duration of the marriage and the effect to which it has affected the income earning capacity of the parties; and

(f) any child support payable by either of the parties.

5. Make such orders as are just and equitable

The final step requires the parties, and more importantly, the Family Court, to step back from the specific considerations and consider the case as a whole to ensure the orders proposed are “just and equitable” within the meaning of the legislation.