Property and Financial Disputes

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Married Couples

The Family Law Act and case law of the Family Court of Australia provides the methodology for determining how property is divided upon the breakdown of a marriage. In addition, relatively recent changes to Family Law have provided a new means of dealing with superannuation.

What a person is entitled to receive is different in every case. It requires an individual assessment of matters specific to you, including what contributions you have made and other factors about you and your spouse.

How you propose to physically divide the assets of the marriage, including superannuation, will depend upon your individual circumstances. This may be influenced by your finances and needs. An individual solution therefore needs to be tailored to you.

Is it better to effect a property division with Court orders, or a Binding Financial Agreement? This will depend upon what kind of settlement is achieved, and why, and what you may seek to protect.

Some couples may seek to deal with financial issues by way of a Binding Financial Agreement prior to or during their marriage, where no breakdown of the relationship has occurred.

What can you do if you cannot support yourself? One spouse may have an obligation to provide financial support for the other. However, before a party can be compelled to do so, one has to consider the financial needs and capacity of both parties, and other matters.

If you cannot achieve an agreement about dividing property in a marriage, which Court should you apply to and what is the likely outcome? The Family Court and Federal Magistrates Court can deal with property cases, but each Court has different powers and procedures, and they are located in different places.


De Facto Relationships

The Property (Relationships) Act (NSW) and case law of the State Courts, including the Supreme and District Courts, provides the methodology for determining how property is divided upon the breakdown of opposite sex and same sex de facto relationships. The considerations are different to those in marriage relationships, and arguably less extensive.

Property division in de facto relationships, like marriage relationships, can be dealt with by Court Orders or a Termination Agreement.

If agreement is reached concerning a property division, then Court Orders can be obtained by consent in the relevant State Court, using a process similar to that in the Family Court. Alternatively, a Termination Agreement is the other option, similar to a Binding Financial Agreement in marriage cases.

However, in cases where agreement cannot be reached consideration needs to be given to which State Court has the power to deal with it, and the procedures are different to the Family Court.

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