January 11, 2013 by Todd
You have separated from your partner, and you are wondering what that means for your family law property settlement.
In family law property settlement matters, there is a four stage process which a Court follows in deciding what property orders to make.
1. The assets, liabilities and superannuation of the parties will be identified and given values. These assets, liabilities and superannuation may belong to you, your partner or both of you. They may belong to a company, trust, partnership or someone else (where you or your partner has a claim on them).
2. The contributions made by the parties to the assets, liabilities and superannuation of the parties are then calculated. Contributions are the things which you and your partner, and other people on behalf of you and your partner, have done which have led to you and your partner having your assets, liabilities and superannuation. Put another way: “how did we get to where we are today?”.
3. The other needs of the parties are then identified. This includes what are commonly referred to as the future needs of you and your partner, the effect of any proposed orders on how each party earns an income, any child support payable or which may be paid, and any other orders made by the Court in relation to the parties. Most commonly, future needs factors relate to who has care of the children, how much each party earns, and the age and state of health of the parties. Put another way, the question asked is: “where should we go after today?”.
4. Are the orders proposed to be made after considering the first three steps ‘just and equitable’? Here, the Court stands back and says “should I change the way in which the parties currently own their property?” It is open to the Court to say that, in spite of the findings in stages 2 and 3, no adjustment should be made.
Even if you reach agreement about property settlement without going to Court, your lawyer will be required to give you advice about how the four stages apply in your circumstances.
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