how is property divided when we can't agree?
If parties are unable to reach an agreement in relation to the division of their property, they can make an application to the court for assistance as the family law courts have the power to make an order altering the parties property interests when it is 'just and equitable' to do so.
Although not legislatively prescribed, a multi-stepped process is used by the profession and the Court to divide property. This multi-stepped process is described as follows:
- Step 1 - Identify and value the property pool;
- Step 2 - Assess the contributions, to the acquisition, conservation and improvement of property;
- Step 3 - Determine whether any adjustments for future needs are required; and
- Step 4 - Just and equitable.
The property pool is all assets, liabilities, financial resources and superannuation that each party has an interest in at the time orders are being made, not the time of separation. The definition of property is wide and includes legal and equitable (beneficial) interests whether acquired jointly or separately. It is irrelevant when the property was acquired or how that interest came about.
what makes up the property pool?
Contributions are those which are direct or indirect made by each party towards the acquisition of the current property pool. Contributions are divided into financial contributions (eg payments of mortgage, bills, groceries etc), contributions as a homemaker and parent and non-financial contributions (eg labour of a party to renovate a property). The contributions which are relevant are those brought into the relationship by the parties, what was contributed during the relationship and in some circumstances, what was contributed after the relationship
what are CONTRIBUTi-ONS?
This stage is concerned about looking to the future to assess the extent to which there are factors which may affect the parties’ future financial situation such that there is a significant disparity between them. Examples of “future needs” factors includes, but is not limited to, the age, state of health, income earning capacity, property financial resources of each of the parties, the physical and mental capacity of each of the parties for appropriate gainful employment, whether either of the parties has the care or control of a child of the marriage who has not attained the age of eighteen (18) years.
At McAdam Family Law on the Gold Coast we provide advice and assistance in relation to all aspects of property division. If you require assistance in relation to issues associated with property division contact McAdam Family Law on the Gold Coast today to organise a consultation.