You can apply to the Federal Family Circuit Court for orders relating to:
- the distribution of assets, liabilities and financial resources of the parties;
- the payment of spousal or de-facto maintenance;
- the payment of child support; or
- the parenting arrangements of any children.
The Court must follow a four-step approach in determining the property related matters between you and your former partner.
Our team of experienced Family Lawyers at Marino Law can assist you in applying to the Court to institute proceedings to resolve of the financial matters arising from the breakdown of your relationship.
Four-Step Approach
The Family Court has set out a four-step approach that the Court must follow to decide property matters between former parties to a relationship.
Step One – Identifying and valuing the assets and the liabilities of the parties
The Court need to identify what joint and separate assets, liabilities and financial resources are held by each party. This task is ordinarily undertaken by the parties through the exchange of financial disclosure. After disclosure has been exchanged the parties will identify the property pool, including any agreement as to values, to the Court.
If the value of an item of property is not agreed, valuations can be undertaken. Alternatively, the Court will make a decision as to the value of the item of property after reviewing any relevant financial documentation provided by way of disclosure.
If a party fails to provide financial disclosure an adverse inference may be drawn by the Court. It coud lead to serious consequences for the defaulting party.
Step Two – Assessing the contributions that each party made to the relationship
The Court will identify (and determine if required) the financial and non-financial contributions of the parties to the relationship. Ordinarily this is broken down into the following categories:
- the financial contributions made by each party at the commencement of the relationship. In particular, what assets, liabilities and financial resources each party had on the day the relationship commenced and how it was applied to the property pool; and
- the financial and non-financial contributions made by each party throughout the duration of the relationship. In particular what financial contributions were made by each party to the enhancement and advancement of the assets, liabilities and financial resources of the relationship (i.e. any income and/or windfall, gift of money, redundancy payment or inheritance received by either party and how it was applied to the property pool) and the homemaking, maintenance or caregiver duties of each party the financial contributions made by each party following separation. In particular whether any further financial contribution was made by either party to the enhancement and advancement of the assets, liabilities and financial resources of the relationship (i.e. any income and/or windfall, gift of money, redundancy payment or inheritance received by either party and how it was applied to the property pool).
Step Three – A comparison of the financial circumstances of each party
Often referred to as the future needs of the parties, the Court will assess a number of circumstances relevant to each party and consider whether a further adjustment will need to be made to a party. Some of the circumstances the Court will consider include, inter alia:
- the age and state of health of each party;
- the income, property and financial resources of each party, including any disparity of income between the parties – income potential going forward subsequent to separation;
- each parties’ capacity to obtain appropriate gainful employment; and
- the ongoing care and control of children of the relationship that are under the age of 18 years.
Step Four – The just and equitable requirement
The Court need to consider whether the likely property adjustment achieved as determined by the first three (3) steps is just, equitable and fair. If it is not, the Court may make a further adjustment in a party’s favour.
The four-step approach is often used by solicitors in negotiating a settlement so as to assess whether a proposal that has been made is just and equitable.
Due to some very imporant case law, the Court has added an additional Step – often referred to as the first step, that is to determine whether it is appropriate to make orders for the division of the asset pool at all.
A recent case considered whether the four-step approach is in fact an appropriate approach to take in all family law financial cases; however, despite the concern being raised, the four step approach remains the primary mechanism used by the Courts and solicitors in determining a just and equitable outcome.
Marius Eden, Special Counsel is an Accredited Specialist in Family Law. Specialist Accreditation acknowledges an additional course of study and the achievement of a high level of practical skill and knowledge in the area of expertise.
