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Resolving financial matters arising from the breakdown of a relationship
In resolving property matters arising from the breakdown of either a marriage or a de-facto relationship, the Family Law Court and the Federal Circuit Court of Australia have jurisdiction to resolve these matters pursuant to the Family Law Act 1975.
With regard to de-facto relationships, there are a number of significant matters which need to be considered in determining whether or not the relationship meets what can be deemed a de-facto relationship under the Family Law Act. You should speak to our family lawyers so we can properly advise you, after assessing the facts and circumstances of your relationship, as to whether or not your relationship would be deemed a de-facto relationship.
Information that we will need to discuss includes the duration of your relationship, the nature and extent of your common residence, whether a sexual relationship existed or still exists, financial dependents or independents, any arrangements for financial support, ownership of property, use and acquisition of property, degree of mutual commitment to a shared life and care and support of children.
Steps in resolving any financial matters
When you initially seek our assistance in resolving a property matter the first step is to establish with you, the facts of the relationship and the matrimonial property pool. This is a list of all assets, superannuation and liabilities held by you both whether individually or jointly. We then need to establish when each asset was acquired before, during or after the relationship. We will need you to attribute a value to each item in the property pool and provide evidence of the value by bank statements, real estate appraisals etc.
Firstly, it is the normal procedure to write on your behalf to your former partner the other party outlining your position inclusive of what you believe to be the matrimonial property pool and values. There is an obligation on both parties to undertake full and frank disclosure of all financial documentation which will assist in proving values of different assets and liabilities. Any real property where the value cannot be agreed between the parties will result in an independent party being appointed to provide a value. The cost of that is usually shared equally.
Assessing contributions and “future factors”
In having a matter determined by the Court, the Court will look to assess contributions made by each of you. That is also what we must do for you. In assessing those contributions we will look at such things as the financial resources either of you brought to the relationship, the financial contributions made during the relationship, the non-financial contributions made to improving the property, financial contributions post-relationship and the contributions to the care and welfare of the family both during and after the relationship.
These contributions are often complex to evaluate but may result in one party receiving more of the property pool than the other dependent on the circumstances. To add further to this the Family Law Act 1975 allows, after the consideration of those matters, a further consideration of “future factors”. These future factors include, but are not limited to, the disparity in income between you, employment of the parties, care of children, the age and health of each of the parties, the commitments of each of the parties necessary to enable the support of him/herself and/or the child(ren) of the relationship and the need to protect the party who wishes to continue the role as the primary parent. These are just a few of the future factor considerations that must be thoroughly assessed on your behalf.
Once the matrimonial property pool has been identified and agreed upon, and we have assessed all contributions and future factors then attempts are made to resolve the matter through negotiation or in some instances mediation prior to the commencement of Court proceedings. It is often the case that parties are not comfortable mediating prior to the commencement of Court proceedings and if no mediation has occurred prior to the commencement of Court proceedings then a mediation and/or Court ordered Conciliation Conference will occur.
All of these matters are complex and you should seek legal advice with respect to the facts of your matter as each and every matter is different. The Court will assess and adjust the property pool in either party’s favour depending on the facts of each matter. Lastly, and we as your lawyers, must assess if the agreement reached or the Orders you seek through Court are just and equitable given all of the facts of the Court in finalising any matter must also ensure that the decision is just and equitable to both parties.
In any Order being made by a Court, or any agreement being made by consent between the parties that is sealed by the Court, the Court has an obligation to make sure that those Orders are just and equitable given the circumstances of the parties. The Court will review the party’s particulars and ensure that any Orders are just and equitable.
If you’re experiencing a relationship breakdown and need legal advice or representation, contact the divorce lawyers at MCG Legal.