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The Courts have the power under the Family Law Act 1975 (Cth) to make orders dividing property between spouses who have separated.
In Western Australia, the Family Court Act 1997 (WA) provides the Family Court of Western Australia with powers to divide property between separated de facto couples (including same-sex couples).
The property settlement process
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.
Presently in Western Australia only married parties are able to split their interests in superannuation.
The Commonwealth Attorney General’s media release of 24 October 2018 states that the legislation will be introduced in 2019 (with super splitting to occur in 2020) which allows de facto couples in Western Australia to “split” their partner’s superannuation as part of their property settlement.
For married parties the Family Law Act 1975 (Cth) provides that parties have 12 months from the date a divorce order becomes final within which to file an application for property orders.
For de facto couples, the Family Court Act 1997 (WA) provides that parties have 2 years from the date of separation to file an application for property orders.
If you miss this limitation period you must first obtain the leave of the court to proceed out of time. This is not always guaranteed.
Our experienced and friendly family lawyers at HFM Legal can assist you by providing reliable legal advice as to your likely entitlements whilst focusing on reaching a fair settlement as cost effectively and efficiently as possible.
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