Money and property matters

After sharing a life together, it can be difficult to decide how to divide property between you and your former spouse or de facto partner. It’s not uncommon to fall into a dispute about dividing the property accumulated during the relationship.

Ultimately, the property you and your former spouse or de facto partner own, or have an interest in, needs to be divided in a way that is fair to you both.

A common misconception is that the Court will make a 50/50 split, with both parties entitled to half of the property. This is not the case. Instead, the Courts have developed a fairly rigorous method to work out how to divide the property at the end of a relationship, based on the laws set out in the Family Law Act. The method involves working out what we call contributions and future needs factors.

Talking with one of our family lawyers who has expertise in family law property settlements can help you protect your interests when it comes to dividing property.

If you’re ready to get professional family law advice, contact our family law firm, Ivy Law Group, on (02) 9262 4003 to arrange a free, no-obligation initial consultation.

What is property?

When making property settlement orders, the Court considers the property that each party brought into the relationship, along with the property purchased or acquired during the relationship and after separation.

Property includes things such as:

  • any house or land, including the former family home or an investment property
  • a business, company or trust
  • cash and bank accounts
  • any debts such as mortgages, loans, tax or stamp duty obligations
  • cars, caravans and boats
  • superannuation entitlements
  • gifts, inheritances, lottery wins, compensation and insurance policy payouts
  • furniture and household items, including jewelry
  • animals.

Keep in mind that it does not matter whether the property is in joint names or just one person’s name or is held with other people. All property is included in the net asset pool to be distributed fairly.

What is a net asset pool?

A net asset pool is the value of the marriage or de facto relationship after you deduct liabilities from assets and superannuation entitlements.

The formula used to calculate a net asset pool is:

            total assets (including superannuation) – total liabilities = net asset pool

If you can’t agree on the value of an asset, that asset will need to be valued.

The net asset pool is established at the date of separation. However, as proceedings can be lengthy you may need to revalue assets during the process.

The rule of thumb is that Court Orders made to end the financial relationship between you and your former spouse or de facto partner are based on the value of the assets at the time when the Orders are made, meaning at the date a court hears your case at trial.

Disclosure obligations and valuations of property

Both parties have an ongoing obligation to provide each other with disclosure, and to make sure all valuations are current until they negotiate a settlement through a Binding Financial Agreement or final Orders are made – whether by a Court or by consent.

Disclosure obligations for property settlement matters

The rules of the Family Court of Australia and the Federal Circuit Court of Australia govern this duty of disclosure.

Disclosure helps you, your family lawyer and the Court gain an understanding of what makes up the net asset pool.

Some of the documents you are required to give to the other party are copies of:

  • tax returns for the last three financial years
  • your most recent superannuation statement
  • any bank statements you have an interest in for the past 12 months, including bank accounts, credit card statements, mortgage accounts and loan account statements
  • any business activity statements for the past 12 months
  • in the event you have any interest in a corporation, trust or partnership, the following documents:
    • financial statements for the past three financial years
    • tax returns for the past three financial years
    • trust deed
  • if you are in receipt of any wage or salary payments, your three most recent pay slips
  • details of any shares or investments you have, together with any current shareholding statements
  • valuations for any property you have an interest in, whether residential or commercial and including cars, caravans and boats
  • information on any property disposed of during the year leading up to the date of separation and since the date of separation.

It is in your best interests to ensure proper disclosure is made by you and your former spouse or de facto partner. Complete disclosure is the only way to determine the accuracy of the values contained in the net asset pool, which form part of your Application for Consent Orders and documents when you commence proceedings. It will also ensure that you have a proper understanding of the effect of the agreement reached.

Also, keep in mind that if the Court considers your disclosure obligations have not been met, then they have the power to set Orders aside. This means they will not make the Orders, even if they are by consent.

Failure to provide your disclosure documents to the other party may also result in a Costs Order against you for unreasonable delays to proceedings.

Valuations

Valuations are used to assist with property settlement negotiations or to assist the Court when making final Orders.

If you and your former spouse or de facto partner agree on the value of the assets, liabilities and superannuation entitlements, then you are not obligated to have the property valued.

However, if you can’t agree on the values of any joint or individual property, independent experts will need to be hired to value the property. It is common practice for both parties to share the costs of any joint valuations obtained.

To ensure the Court accepts evidence of a valuation, the valuation should be up-to-date and done by a valuer who is appropriately qualified to value.

If your former spouse or de facto partner doesn’t comply with their duty to provide disclosure documents, and Court proceedings have started, you can issue a subpoena through the Court to have access to the documents or request the court to make relevant Orders.

Find out more about how subpoenas work in family law proceedings or contact Ivy Law Group on (02) 9262 4003 to arrange a free, no-obligation initial consultation.

Superannuation valuations

Valuing your superannuation entitlements is fairly simple.

You should obtain and complete a Form 6 Declaration: Information Request Form. You can obtain the form directly from your superannuation fund or from the Family Court’s website. The completed form must be sent to the trustee of your superannuation fund. Some funds charge a nominal fee to process this request.

The valuation provided from the superannuation fund will, in most circumstances, be enough to satisfy your disclosure obligations.

In more complex superannuation matters, you may need to obtain an expert valuation. For these matters, you will need to get family law advice.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.

Methods of resolving property settlement and spousal maintenance matters

Negotiation

Negotiations about property settlement matters and spousal maintenance matters can happen between you and your former spouse or de facto partner directly or you can hire family lawyers to handle negotiations.

Negotiations can happen in writing, verbally or, where appropriate, in person.

If you are having trouble reaching an agreement in relation to property and money matters, we recommend you get independent legal advice to assist in your negotiations. It is better for everyone – especially the children – to reach an agreement rather than commence Court proceedings.

For help in negotiating family law property settlement and spousal maintenance matters, contact the family lawyers at Ivy Law Group on (02) 9262 4003.

Mediation

Mediation is a well-established and popular dispute resolution process for parenting, property and financial matters.

This process involves face-to-face discussions between you and your former spouse or de facto partner, usually with your family lawyers present. A jointly-appointed mediator is also present and assists parties to find common ground in order to construct a lasting agreement.

The mediator is usually a senior member of the profession, who may be a former Judge, barrister, experienced solicitor.

The mediation process is most successful when:

  • the parties agree on property value or have organised valuations of any property in dispute
  • the ongoing expenses and needs of the parties have been addressed in advance
  • both parties are prepared to make sensible compromises to resolve the matter.

In most circumstances, the cost of the mediator’s fees are shared equally between you and your former spouse or de facto partner.

Arbitration

Arbitration is a confidential process that assists parties to resolve property settlement and spousal maintenance matters.

Arbitration involves a neutral third party – the Arbitrator – who meets with you and your former spouse or de facto partner (and usually your legal representatives) to consider the evidence and arguments in dispute.

The Arbitrator, who is usually a senior barrister or a former Judge, makes an informed decision to resolve the dispute. The decision is called an award and is legally binding once it is registered with the court.

The arbitration process is generally more time and cost-effective than commencing proceedings and going to trial. The process is also more flexible and can accommodate any other needs or requirements.

Collaborative process

The collaborative process is commonly referred to as the “respectful divorce process”. It is a very different form of dispute resolution process.

This process requires you and your former spouse or de facto partner to make a commitment to not commence (or threaten to commence) Court proceedings for your parenting matters.

Instead, you both, with your family lawyers, have face-to-face meetings to reach an agreement. These “round table” discussions include, where appropriate, accountants, financial planners and counsellors. This allows you to reach an agreement that is mutually acceptable without attending Court.

Once an agreement has been reached, your family lawyers will assist you in formalising the agreement and lodging it with the Court.

We have reached an agreement about property matters: How to formalise property matters

If you and your former spouse or de facto partner have been able to reach an agreement without the Court’s assistance, there are three options:

  1. Informal Agreement
  2. Consent Orders
  3. Binding Financial Agreement.

Informal Agreement

You are not required to have a formal agreement or go to Court when you are dividing property between you and your former spouse or de facto partner.

However, keep in mind that an informal agreement will not be legally binding. This means that if either you or your former spouse or de facto partner fail to follow the terms of the agreement, there is no way to enforce those terms.

Ultimately, entering into an informal agreement means:

  • you may not receive what you are entitled to or have agreed to receive
  • one of you could bring an application with the Court to commence proceedings at a later date (provided it is within the relevant time limitations, or you are granted leave by the court to issue the proceedings outside of time due to extenuating circumstances that caused the delay and provided the court does not consider there will be hardship to the other person if they allow it).

Consent Orders

Consent Orders can deal with any financial matters, including spousal maintenance matters, the splitting of superannuation and the transfer or sale of any property.

You can put the terms of your agreement into Consent Orders, which are governed by the Family Law Act 1975, by filing the following documents:

  1. Application for Consent Orders

This sets out details for each party (and the children under 18 years of age, if any), the assets, liabilities and superannuation entitlements of each party, and the agreement you are seeking.

  1. Minutes of Orders

This details the agreement reached for the Court’s approval.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

The Registrar will review the terms of the agreement and, if considered to be fair to both parties in the circumstances, will make the Orders binding. The parties do not need to attend Court however both parties will be bound by the terms of the agreement and neither party will be able to make a future claim on the property.

For family law advice tailored to your circumstances and or family law dispute, contact the family lawyers at Ivy Law Group on 02 9262 4003.

Time limitations for Consent Orders

An application for Consent Orders for property settlement or spousal maintenance must be made within:

  • one year from the date of divorce for married couples
  • two years from the date of separation for de facto couples.

If an agreement can’t be reached, you can make an application to the Court to commence proceedings in either the Federal Circuit Court of Australia or, for more complex matters, in the Family Court of Australia.

How can a Court set aside or change Consent Orders?

The only way Orders for property settlement can be “set aside” (meaning they are cancelled) or changed by the Court are if one of the following occurs:

  • a miscarriage of justice (by fraud, duress, physical or mental harm, suppression of evidence, the giving of false evidence or any other circumstance)
  • it is impossible for either party to complete the terms in the Orders (in the circumstances that have arisen since the Orders were made)
  • a person has failed to meet their obligations which are in the terms of the Orders and in such circumstances it is only fair to vary the Orders or set aside the Orders and make other Orders in place of the existing Orders
  • circumstances of an exceptional nature relating to the care, welfare and development of a child (under the age of 18 years or an adult child with a disability) have arisen since the Orders were made, by which the child, or the primary carer of the child, will suffer hardship if the court does not vary the Orders or set aside the Orders and make another Order in place of the existing Orders
  • you and your former spouse or de facto partner consent.

Do I have to pay stamp duty if there is a transfer or sale of a property in Consent Orders?

One of the many benefits of entering into Consent Orders (or a Binding Financial Agreement) is that any transfer of property, including the transfer of the former matrimonial home, an investment property, or any other property, will be exempt from stamp duty if it is transferred to another party or a child of the relationship.

Binding Financial Agreement

The terms of the agreement can be put into a Binding Financial Agreement, which is also governed by the Family Law Act 1975. The Court does not approve of, or review, Binding Financial Agreements and there is no requirement for the net asset pool to be divided in a just and fair way.

Financial agreements can be entered into during the following periods:

  • before entering into a marriage or a de facto relationship (sometimes called “prenuptial agreements” or a “prenup agreement”, but the legal term is financial agreement)
  • during a marriage or a de facto relationship
  • after a marriage or a de facto relationship has ended.

Both parties are required to have legal representation prior to signing a Binding Financial Agreement. The document must also be drafted to comply with certain requirements for it to be legally binding.

Spousal maintenance matters can also be dealt with in a Binding Financial Agreement after the breakdown of a marriage or de facto relationship.

You should obtain independent family law advice about any Financial Agreement.

If you’re ready to get professional family law advice and help, contact the family lawyers at Ivy Law Group on 02 9262 4003 to arrange a free, no-obligation consultation.

Time limitations of Binding Financial Agreements

A Binding Financial Agreement can be entered into before, during or after a marriage or a de facto relationship.

If made after marriage, the Binding Financial Agreement must be made within 12 months of an Order of Divorce or within two years after the date of separation of a de facto relationship, unless otherwise agreed.

How can a Binding Financial Agreement be varied?

Although there is some dispute amongst family lawyers, Ivy Law Group family lawyers do not consider it possible to enter into a new Binding Financial Agreement which only varies part of an earlier Binding Financial Agreement.

The only way that a Binding Financial Agreement can be set aside or changed is by entering into:

  • a later Binding Financial Agreement, which includes a clause to terminate the current agreement
  • a Termination Agreement, which terminates the earlier agreement.

The Family Law Act 1975 requires that if any changes are to be made, then an entirely new agreement needs to be entered into which completely replaces the earlier financial agreement.

Do I have to pay stamp duty if there is a transfer or sale of the property in the terms of the Binding Financial Agreement?

Transfers of property pursuant to Binding Financial Agreements will usually also be exempt from stamp duty.

We have reached an agreement about property matters: How to formalise property matters

If you and your former spouse or de facto partner have been able to reach an agreement without the Court’s assistance, there are three options:

  1. Informal Agreement
  2. Consent Orders
  3. Binding Financial Agreement.

Informal Agreement

You are not required to have a formal agreement or go to Court when you are dividing property between you and your former spouse or de facto partner.

However, keep in mind that an informal agreement will not be legally binding. This means that if either you or your former spouse or de facto partner fail to follow the terms of the agreement, there is no way to enforce those terms.

Ultimately, entering into an informal agreement means:

  • you may not receive what you are entitled to or have agreed to receive
  • one of you could bring an application with the Court to commence proceedings at a later date (provided it is within the relevant time limitations, or you are granted leave by the court to issue the proceedings outside of time due to extenuating circumstances that caused the delay and provided the court does not consider there will be hardship to the other person if they allow it).

Consent Orders

Consent Orders can deal with any financial matters, including spousal maintenance matters, the splitting of superannuation and the transfer or sale of any property.

You can put the terms of your agreement into Consent Orders, which are governed by the Family Law Act 1975, by filing the following documents:

  1. Application for Consent Orders

This sets out details for each party (and the children under 18 years of age, if any), the assets, liabilities and superannuation entitlements of each party, and the agreement you are seeking.

  1. Minutes of Orders

This details the agreement reached for the Court’s approval.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

The Registrar will review the terms of the agreement and, if considered to be fair to both parties in the circumstances, will make the Orders binding. The parties do not need to attend Court however both parties will be bound by the terms of the agreement and neither party will be able to make a future claim on the property.

For family law advice tailored to your circumstances and or family law dispute, contact the family lawyers at Ivy Law Group on 02 9262 4003.

Time limitations for Consent Orders

An application for Consent Orders for property settlement or spousal maintenance must be made within:

  • one year from the date of divorce for married couples
  • two years from the date of separation for de facto couples.

If an agreement can’t be reached, you can make an application to the Court to commence proceedings in either the Federal Circuit Court of Australia or, for more complex matters, in the Family Court of Australia.

How can a Court set aside or change Consent Orders?

The only way Orders for property settlement can be “set aside” (meaning they are cancelled) or changed by the Court are if one of the following occurs:

  • a miscarriage of justice (by fraud, duress, physical or mental harm, suppression of evidence, the giving of false evidence or any other circumstance)
  • it is impossible for either party to complete the terms in the Orders (in the circumstances that have arisen since the Orders were made)
  • a person has failed to meet their obligations which are in the terms of the Orders and in such circumstances it is only fair to vary the Orders or set aside the Orders and make other Orders in place of the existing Orders
  • circumstances of an exceptional nature relating to the care, welfare and development of a child (under the age of 18 years or an adult child with a disability) have arisen since the Orders were made, by which the child, or the primary carer of the child, will suffer hardship if the court does not vary the Orders or set aside the Orders and make another Order in place of the existing Orders
  • you and your former spouse or de facto partner consent.

Do I have to pay stamp duty if there is a transfer or sale of a property in Consent Orders?

One of the many benefits of entering into Consent Orders (or a Binding Financial Agreement) is that any transfer of property, including the transfer of the former matrimonial home, an investment property, or any other property, will be exempt from stamp duty if it is transferred to another party or a child of the relationship.

Binding Financial Agreement

The terms of the agreement can be put into a Binding Financial Agreement, which is also governed by the Family Law Act 1975. The Court does not approve of, or review, Binding Financial Agreements and there is no requirement for the net asset pool to be divided in a just and fair way.

Financial agreements can be entered into during the following periods:

  • before entering into a marriage or a de facto relationship (sometimes called “prenuptial agreements” or a “prenup agreement”, but the legal term is financial agreement)
  • during a marriage or a de facto relationship
  • after a marriage or a de facto relationship has ended.

Both parties are required to have legal representation prior to signing a Binding Financial Agreement. The document must also be drafted to comply with certain requirements for it to be legally binding.

Spousal maintenance matters can also be dealt with in a Binding Financial Agreement after the breakdown of a marriage or de facto relationship.

You should obtain independent family law advice about any Financial Agreement.

If you’re ready to get professional family law advice and help, contact the family lawyers at Ivy Law Group on (02) 9262 4003 to arrange a free, no-obligation consultation.

Time limitations of Binding Financial Agreements

A Binding Financial Agreement can be entered into before, during or after a marriage or a de facto relationship.

If made after marriage, the Binding Financial Agreement must be made within 12 months of an Order of Divorce or within two years after the date of separation of a de facto relationship, unless otherwise agreed.

How can a Binding Financial Agreement be varied?

Although there is some dispute amongst family lawyers, Ivy Law Group family lawyers do not consider it possible to enter into a new Binding Financial Agreement which only varies part of an earlier Binding Financial Agreement.

The only way that a Binding Financial Agreement can be set aside or changed is by entering into:

  • a later Binding Financial Agreement, which includes a clause to terminate the current agreement
  • a Termination Agreement, which terminates the earlier agreement.

The Family Law Act 1975 requires that if any changes are to be made, then an entirely new agreement needs to be entered into which completely replaces the earlier financial agreement.

Do I have to pay stamp duty if there is a transfer or sale of the property in the terms of the Binding Financial Agreement?

Transfers of property pursuant to Binding Financial Agreements will usually also be exempt from stamp duty.

We CAN’T reach an agreement about property matters: What happens next?

If an agreement can’t be reached by way of negotiations , you will need the Court to make an Order on your behalf. The Court will divide your property interests in what is called a just and equitable (otherwise, fair and reasonable) manner based on the circumstances of your marriage or de facto relationship and the parties future needs.

Before making an application to commence proceedings, you will need to:

  • inform your former spouse or de facto partner, or their legal representation, that you intend to make a claim in Court, and
  • have attempted to settle the matter and satisfy your disclosure obligations (in some cases the other party will not produce their disclosure documents, in which case you can make an application to the Court for orders).

You can prepare an application for property settlement and spousal maintenance family law matters or our family lawyers can help you with this.

If you choose to represent yourself in Court proceedings, we highly recommend you seek legal advice before you do so. You should completely understand your rights, responsibilities and obligations prior to filing your application and throughout the entire process.

For family law advice tailored to your family law dispute and circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.

Making a Court application for property proceedings

When you make an application to the Court to commence proceedings for property settlement matters, including spousal maintenance, you must file the following documents with the Court:

  1. Initiating Application

This sets out the details of the relationship, and the final Orders you are seeking in relation to the division of the net asset pool and spouse maintenance payments. You can also seek interim Orders, such as attending family law mediation, obtaining joint valuations, payment of spouse maintenance for a period of time, selling a property, or any other order concerning something that will occur before final orders are made.

  1. Financial Statement

This details the Applicant’s financial position (income, expenses, assets, liabilities and superannuation entitlements), the known asset pool, if possible, and shows why a party needs to claim spousal maintenance.

  1. Affidavit

This sets out your written evidence, including reasons why the Court should make the Orders you are seeking.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

You will need to serve the documents on the other party once you have commenced proceedings. You can serve the documents by hand, post, email, facsimile or upon the solicitors acting for the other party (if they have agreed to accept service).

You can commence proceedings with or without a solicitor. However, given the complexity of family law matters, we recommend you obtain family law advice before commencing family law proceedings.

You should understand how the Court process works and get family law advice about what range of outcomes you would expect in your circumstances if your matter was to be decided by the Court.

You can also find tips on how to write an affidavit or call our family lawyers on 02 9262 4003 to obtain advice tailored to your family law dispute and circumstances.

Response to Application for Property Settlement Proceedings

If you have been served with an Initiating Application for Property Orders, you will need to file the following Court documents in response, setting out your position:

  1. Response to Initiating Application

This is a response to the issues in dispute raised in the Initiating Application and provides alternative evidence, if necessary, to support your case.

  1. Financial Statement

Details of the party’s financial position (income, expenses, assets, liabilities and superannuation entitlements), the known asset pool, if possible, and, if relevant, why the party needs to claim spousal maintenance.

  1. Affidavit

This should set out your written evidence, including reasons why the Court should make the Orders you are seeking.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

The documents will need to be served on the other party in the proceedings.

Given the complexity of family law matters, we recommend you obtain family law advice before responding to an Initiating Application. You should understand how the Family Court related process works and get family law advice about what range of outcomes you would expect in your circumstances if your matter was to be decided by a Court.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.

The Court process

What happens when property proceedings

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Non-urgent property settlement matters

Every family law matter is different and the outcome will vary depending on the specific circumstances of your marriage or de facto relationship.

When commencing proceedings, there is a seven-step process:

Step 1: Pre-action procedures

Before commencing proceedings, you must:

  • invite your former spouse or de facto partner to participate in a dispute resolution process
  • agree on a dispute resolution service, such as family mediation or dispute resolution forums, and make a genuine effort to resolve issues.

Step 2: Intention to claim and disclosure obligations

Intention to claim

If you can’t reach an agreement, or one party does not participate in negotiations or mediation, you must write to your former spouse or de facto partner setting out:

  • the issues in dispute
  • the Orders that will be sought if you commence proceedings
  • a genuine offer of settlement for property and spouse maintenance matters
  • the nominated period of time for a response, usually within 14 days from the letter’s date.

If you do not receive a response within the nominated period of time, you can commence proceedings.

Disclosure obligations

The Court states that, when commencing proceedings, each party has a duty to provide “full and frank” disclosure to their former spouse or de facto partner. That means, you must provide all information and documents relating to your earnings, income, interest, property interests and any other financial resources. This applies whether you have an interest in, or own or control, any property, financial resources and earnings, or hold property in corporations, trusts, and companies.

You must also disclose any information about the disposal of any property, whether by sale, transfer, assignment, gift or inheritance, that occurred 12 months prior to the date of separation until Court proceedings have ended. This means, you have an ongoing obligation to provide disclosure to your former spouse or de facto partner.

Step 3: File Initiating Application

To commence parenting proceedings, you need to file the relevant documents in either the Federal Circuit Court of Australia or the Family Court of Australia. You can read more about making an Application for Parenting Proceedings in Court.

It’s important to know the difference between the Federal Circuit Court of Australia and the Family Court of Australia. The Federal Circuit Court was set up and designed to help the Family Court System, by having it deal with less complicated family law disputes and matters. Usually this means cases that will only run for two days or where the asset pool of the parties in dispute is not excessive.

The other party will need to provide a Response to Initiating Application before the first Court date. If they don’t, the Court may make Orders on their behalf in their absence if they refuse to participate in the proceedings and or comply with orders to do certain things such as file a Response. This may even result in orders being made on a final basis by a Court, finalising a family law matter once and for all.

Step 4: First Court hearing date

When you commence family law proceedings, you will be given a date for your first Court hearing. You and your family law representative will need to appear before a Judge or Registrar. If the other party does not attend, and the Court has significant evidence, they may make final Orders. However, in most circumstances, Interim Orders will be made and must be served on the other party.

Interim orders are to assist in progression of your matter. They can order both parties to attend family law mediation, attain joint valuations, pay spouse maintenance for a period of time, sell a property, or do anything else which will occur before final family law property orders are made.

Step 5: Attendance at Court Ordered Mediation, Arbitration or Conciliation Conference

The Judge will provide specific Orders around choosing a Mediator or Arbitrator or will make a direction for you and your former spouse or de facto partner to attend a mediation, arbitration or a conciliation conference on a specific date.

This event must occur before the next Court hearing.

If an agreement can be reached, our family lawyers will file the draft Orders setting out the agreement to the Court for approval. If the Court considers the agreement is fair, then it will make the Orders and they will be binding on both parties. If you are self-represented (meaning you are acting for yourself) you will need to attend the next Court hearing to hand the Consent Orders up to the Judge for review and approval.

If an agreement cannot be reached, you and your former spouse or de facto partner will need to attend a Pre-Trial Conference.

Step 6: Pre-Trial Conference

The purpose of this conference, run by a Registrar, is to determine what issues remain in dispute and how long the Trial will run to consider all of the relevant evidence before the Court.

The Registrar will, if appropriate, make Orders for any other service that may help settle the dispute before the Trial.

The Registrar will also make orders to assist the Trial. These might relate to updated valuations, additional disclosure to be made between the parties, or directions as to what happens next.

Step 7: Trial – Final Court Hearing

The Court will consider all evidence put before it to make a fair and just decision about the distribution of the net asset pool and Spouse Maintenance Orders.

Urgent property settlement matters

An urgent family law property application may be made if your former spouse or de facto partner:

  • does not comply with their disclosure obligation, or
  • does not respond to your attempt to settle property and spousal matters by negotiation or mediation, or
  • sells or transfers a property, or you have strong evidence to suspect they will, that they or you have a caveatable interest in, or
  • there are any other urgent matters necessary for a Judge to consider an urgent application.

If you need to commence an urgent property family law matter, you need to follow steps 3 through to 7, as detailed above.

Advice about urgent family law property matters will vary depending on the complexity and whether you will be filing an application in the Family Court of Australia or the Federal Circuit Court of Australia.

For family law advice and help tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.

How the Court decides a fair and just property settlement

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STEP 1: Net asset pool and valuation of assets

Determining the net asset pool available for distribution between the parties involves identifying and valuing all assets, liabilities and superannuation entitlements that both parties have an interest in – whether jointly, individually or with other people. This includes interests in trust, companies, partnerships or any other corporate entity.

The Court has the power to “lift the corporate veil” to determine whether any other entities are also, in effect, controlled by one of the parties. If so, these will be included in the net asset pool available for division.

Unless agreement can be reached on the value of any major assets, including real estate and company or corporate partnership interests, the Court will need to make a formal valuation.

Furniture and household effects are valued at their second-hand market value, not the purchase price or the insurance value.

STEP 2: Contributions

The Court will then determine what contributions were made by each of the parties.

Contributions include those that were made at the commencement of the relationship, during the relationship and after separation.

The Family Law Act 1975 requires the Court to consider:

  • Financial contributions

These can be made directly or indirectly on behalf of a party to the marriage or de facto relationship towards the purchase, maintenance or improvement of the property. They include:

  • direct financial contributions, such as salary or wage earnings
  • indirect financial contributions, such as gifts or inheritances from family.
  • Non-financial contributions

These can be made directly or indirectly on behalf of a party to the marriage or de facto relationship towards the purchase, maintenance or improvement of the property. They include:

  • direct non-financial contributions (for example, if either party acts as the project manager for the building of a new home or renovations to a property, or assists with renovating part of the property)
  • indirect non-financial contributions (for example, if the father of one party builds a deck on the current property).
  • Homemaker and parenting contributions

These are any contributions to the welfare of the family, including contributions made as a parent or homemaker.

All contributions are given the same weight – no one type of contribution is more valuable than another. For example, if one party made significant financial contributions and the other made significant homemaker and parenting contributions to the marriage or de facto relationship, the Court would generally consider these contributions to be equal.

The Court will determine what contribution, in percentage terms, each of the parties has made to the net asset pool available for division.

It’s important to note that although you may not have made a direct contribution to an asset, for example because the other person brought it into the relationship and it was controlled by them throughout, the Court might consider what it calls a myriad of other types of contributions (such as emotional support or caring for the children) that has an indirect or causal relationship to that asset.

Can there be negative contributions?

In most cases, contributions result in an increase in the value of the property.

However, in some cases, the value of the property may decrease due to certain actions or inactions. This is referred to as “waste” in relation to assets or “negative contributions” in relation to serious family violence.

Section 75(2)(o) of the Family Law Act 1975 states that a Court can take into account any other factor that it regards as relevant to the division of property, including “waste” and “negative contributions”.

Some examples of negative contributions and waste include:

  • when serious family violence has impacted the victim so much that they were unable to make substantial contributions or their contributions were made more difficult to complete
  • \when one party’s actions resulted in a loss to the net asset pool, affecting both parties, including through gambling, extravagant discretionary spending, and poor business or financial decisions.

Running a waste or negative contributions argument, either in Court or during negotiations, can be difficult and complex. We highly recommend you obtain family law advice from one of our experienced family lawyers in these circumstances.

For family law advice and help tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.

STEP 3: Identify future needs factors

The Court then considers the future needs of both parties to the marriage or de facto relationship. This may result in a further adjustment, in percentage terms, for each party. The future needs factors the Court may consider are:

  • the age and state of health of each of the parties
  • the income, property and financial resources of each of the parties and the physical and mental capacity of each of them to engage in appropriate gainful employment
  • whether either party has the care or control of a child of the marriage or de facto relationship
  • commitments of each of the parties that are necessary to enable the party to support themselves and a child or other person that the party has a duty to maintain
  • the responsibilities of either party to support any other person (for example, a new de facto partner or spouse)
  • the eligibility of either party for a pension, allowance or benefits
  • a standard of living that in all the circumstances is reasonable
  • the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party (by enabling them to take a course or establish himself or herself in a business or otherwise obtain an adequate income)
  • the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
  • the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
  • if either party is cohabiting with another person and, in particular, the financial circumstances relating to that cohabitation
  • any fact or circumstance which, in the opinion of the court, should be taken into account.

The Judge may make a further adjustment in favour of one party once all relevant future factors are considered.

STEP 4: “Just and equitable” division

Finally, the Court must consider whether the result reached, that is the percentage division of the net asset pool, is “just and equitable”. This means that the Court has to consider the practical effect of the Orders.

For example, the Court will consider if there are enough funds in the net asset pool for a payment to one party for their interest in the former matrimonial home. If not, there will be an order for the former matrimonial home to be sold with the net proceeds of sale to be divided between the parties.

The Court may also make a Spousal Maintenance Order as it considers “proper” when making final property settlement orders. Spousal Maintenance Orders can be a lump sum payment, the transfer of specific assets or periodic payments. The Court’s ultimate goal when making final property Orders is to sever the financial relationship between parties so that each party can move forward in their lives.

Time limitations for property settlement and maintenance matters

Property Settlement               An application for property settlement must be filed:

  • De facto couples: within two years from the date of separation in a de facto relationship; or
  • Married couples: within 12 months from the date upon which your divorce becomes final.

Spouse Maintenance               An application for spousal maintenance must be filed:

  • De facto couples: within two (years from the date of separation in a de facto relationship; or
  • Married couples: within 12 months from the date upon which your divorce becomes final.

Special Service                        As soon as practicable, but no longer than 12 months, from the date of filing.

Application for Leave            If you fail to commence proceedings within the time limitations, then you must apply to the Court for permission to commence proceedings out of time. To do so, you will have to provide an explanation to the Court about why you failed to commence the proceedings within the required time and show that the failure of the Court to make an Order would cause you hardship.

Other considerations in property settlement matters

Family violence and negative contributions

In property settlement and spousal maintenance matters, the Court considers how much each party contributed, whether directly or indirectly, to the financial relationship. This can be done through financial contributions, non-financial contributions and parent and homemaker contributions.

The conduct of each party is usually not considered by a Court, unless there was serious family violence in a marriage or a de facto relationship. This can result in a “negative contribution”, though it can be a difficult thing to prove.

What is family violence?

The Family Law Act 1975 defines family violence as any behaviour that is violent or threatening, or any other behaviour that coerces or controls another member of the person’s family or causes that family member to be fearful.

The following are examples of family violence:

  • assault (including physical, emotional, financial, sexual assault or other sexually abusive behaviour)
  • stalking
  • making repeated derogatory taunts
  • intentionally damaging or destroying property
  • intentionally injuring or causing death to an animal
  • financial or social control or coercion, including:
    • unreasonably denying financial independence (for example, by controlling what a family member spends or how they access their money)
    • unreasonably withholding financial support for reasonable living expenses to a dependent
    • preventing someone from making, or keeping connections, with their family, friends, culture or religion
    • unlawfully depriving someone of his or her liberty.

The Court may consider other circumstances or behaviours that fall within the definition of family violence.

Does serious family violence affect the outcome of property settlement matters?

Even though the Family Law Act 1975 does not explicitly state that serious family violence can result in a negative contribution, the Court has the discretionary power to make any order it considers appropriate when making an adjustment of interests and deciding a fair property settlement.

Case law shows that judges are willing to determine that serious family violence can result in a negative contribution.

In 1997, the Family Court of Australia considered whether family violence could alter the outcome of a property settlement in the case of Kennon v Kennon.

In this case, the husband had a significantly higher income, but the wife had brought significantly more assets into the relationship. The wife alleged that the husband had caused serious family violence, which involved several specific encounters of physical violence. She argued that his conduct should result in an adjustment, in percentage terms, in her favour.

In making its decision, the Court considered whether:

  • circumstances of “violent conduct” was established
  • the violent conduct had a visible impact on the wife
  • the wife’s contributions to the relationship had become significantly more difficult because of the domestic violence.

Ultimately, the Court found that a successful negative contribution argument, based on serious family violence affecting the victim’s contributions to the relationship to become more difficult, requires specific evidence to substantiate the argument. The Court made it clear that a successful negative contributions argument would only apply in rare circumstances.

In the later case of Baranski & Baranksi & Anor, the Court followed the Kennon decision but made it clear that family violence could be considered to make contributions more difficult regardless if the family violence happened during the marriage or de facto relationship or after the date of separation or divorce.

If you have suffered from significant family violence during your marriage or de facto relationship, and wish to run a negative contributions argument in Court, you will need to ensure that the Court is satisfied there is a causative link between the family violence and the loss that was suffered. You will need to provide sufficient evidence to support this argument, such as expert evidence from a psychiatrist or psychologist. If evidence can prove that loss has been suffered, then a Court will make an adjustment, in percentage terms, in favour of the person who suffered from the family violence.

Ultimately, it is the Court’s discretion as to whether the serious family violence is so significant it can be seen as a negative contribution. That means, the Court will make decisions on a case by case basis.

This argument is very difficult and complex to make before a Court due to the strict evidence required to meet the threshold.

If you have experienced, or continue to experience, serious family violence, then we highly recommend you get family law advice and contact Police. Contact our experienced family lawyers at Ivy Law Group on 02 9262 4003 to arrange a free, no-obligation initial consultation.

Children: effect on property settlement matters

Will there be an adjustment if there are children in the marriage or de facto relationship?

When the Court is considering whether any adjustments, in percentage terms, can be made in relation to the future needs factors (section 75(2) Family Law Act 1975), it will take into account whether either party has:

  • the care or control of a child of the marriage or de facto relationship
  • any commitments and responsibilities to care and support any other person, including a child, from another marriage or de facto relationship (for example, child support or maintenance).

The Court has the discretionary power to make an adjustment to reflect the dynamic of the parties’ future needs to ensure that everyone is taken care of.

Superannuation entitlements and splitting orders

What is superannuation?

Superannuation, or super, falls into the definition of property under the Family Law Act 1975.

Superannuation is money that you, or your employer, sets aside into a trust during your working life to provide you with an income stream when you retire.

The superannuation you are paid is your money.

Your superannuation can be managed for you by a professional superannuation fund (either in an accumulation account or a defined benefits account) or in a self-managed superannuation fund (SMSF).

When your superannuation contribution has been paid into your professional superannuation fund or SMSF, the money will be invested into shares, property and managed funds on your behalf by the Trustee of the Fund.

The only difference between superannuation and other property is that superannuation is dealt with differently as it is held in a trust and every superannuation fund or SMSF has rules for how the asset can be accessed.

Professional superannuation funds: defined benefits vs accumulation funds

Superannuation usually starts from your first paid job and your employer makes a contribution on your behalf by paying a portion (9.5% of your pre-tax income) of your salary into a super fund on your behalf.

Making contributions into a professional superannuation fund means that the Trustee will invest your funds on your behalf. You do not have a decision on how your superannuation contributions are invested, other than choosing a professional super fund that is based on your preferences (such as how and who they invest your contributions with).

There are generally two types of professional super funds:

  • an accumulation account
  • a defined benefit account.

Accumulation account

Most superannuation contributions are paid into an accumulation fund. This means your superannuation grows, or accumulates, over the period of your working life until retirement.

If the investment makes a profit, this will be added to your accumulation account. However, if the investment makes a loss that loss will be taken out of your superannuation account.

It is important to know that if the financial market has a downturn for any reason, you bear the risk of your accumulation account being paid out, at retirement age, at a lower amount. Similarly, if the financial market increases, you will be paid out an increased amount at retirement age.

Defined benefit account

Defined benefit accounts (DB funds) are less common these days as they are corporate or public sector funds and are closed to new members. DB funds are historically very generous.

The main difference between a DB fund and an accumulation fund is that the risk is taken on by either your employer or the super fund itself.

DB funds can be affected by a downturn of the financial market, which may cause issues for some employers or professional funds.

DB funds are the holy grail of superannuation funds. Never leave a DB fund, unless you have received professional advice that your superannuation contributions will be better off in another fund. Once you close your DB fund, you will not be able to open another one or get back into your previous account.

Self-managed superannuation funds

A self-managed superannuation fund (SMSF) is a private superannuation fund that is managed by yourself or your former spouse or de facto partner. SMSFs are a way of saving for your retirement.

Instead of you or your employer making a superannuation contribution to a professional super fund, it will be paid into your own SMSF.

The main difference between a professional superannuation fund and an SMSF is that the Trustee of the fund is usually you or your former spouse or de facto partner. This means you can choose how you invest your money. You are also responsible for complying with superannuation and tax laws.

What is a superannuation splitting order or clause?

The Family Law Act 1975 governs superannuation splitting payments. Splitting superannuation entitlements applies to both married and de facto relationships, except in Western Australia.

When it comes to splitting superannuation after separation, this will form part of your overall property settlement agreement – regardless of whether you and your former spouse or de facto partner choose, or are ordered by the Court, to split superannuation entitlements.

It is important to understand that if a superannuation splitting payment has been agreed to or Court ordered, the benefit will not be made into a cash asset. The entitlement will remain in a superannuation trust and continue to be governed by superannuation laws until retirement age – even if there are cash assets in an SMSF. 

How do I value a superannuation entitlement or interest?

Superannuation splitting legislation sets out the methods to determine the value of most superannuation funds, including both professional super funds and SMSFs.

For most funds, you must complete a Form 6: Superannuation Information Request Form and send it to the Trustee. The fund may charge a nominal fee, which will need to be paid at the time of the request.

If it is a simple valuation, the Trustee will provide you with a valuation of the asset. However, if the value of the superannuation is complex, you may need to get advice from an expert valuer to determine the value of the superannuation entitlement.

We recommend you seek family law advice to assist you in these more complex matters. Contact the family lawyers at Ivy Law Group on 02 9262 4003 for assistance.

How do I formalise my agreement (or get a Court to make orders if no agreement is reached)?

If you and your former spouse or de facto partner reach agreement, you can enter into a formal agreement by way of:

  • Binding Financial Agreement

Both parties must have legal representation to enter into a Financial Agreement. These agreements are not registered with, or reviewed by, the Court.

  • Consent Orders

An application for Consent Orders can be made to the Court for review and approval. Remember, the Court will consider whether the agreement reached is fair to both parties and will apply the four-step process when making its decision. You do not need to attend Court to obtain Consent Orders.

If you and your former spouse or de facto partner can’t reach an agreement you will need to obtain Court Orders by initiating proceedings for property settlement matters. You will need to attend Court for this. 

Regardless of whether you enter into a Financial Agreement or Consent Orders, or an order is made by the Court about superannuation splitting orders, the following must occur:

  • Valuation of the superannuation entitlement in the superannuation fund or SMSF
  • the superannuation fund or SMSF must be given a copy of the draft Orders or terms of the Financial Agreement (specific to the super split) to ensure that the Trustee is able to action the Orders or terms and give effect to the super splitting payment under their relevant rules
  • once the Financial Agreement or Court Orders have been made, you must provide the trustee of the professional superannuation fund or the SMSF with a sealed copy of the Orders or a certified copy of the Binding Financial Agreement so that they can initiate the superannuation splitting payment.

Each fund will have a required timeframe for complying with the superannuation splitting orders or terms of the Financial Agreement.

Depending on your superannuation entitlements, it can be very difficult to make a superannuation splitting Order or terms of Financial Agreement. We recommend you seek independent legal advice about the options available to you.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.

Caveats on real property

What is a caveat?

A caveat is a legal notice, made by the Registrar of Titles, that is recorded on the title of a property.

By placing a caveat on a property title, for example on a house title, you are protecting your interest since the property is not able to be sold until the caveat has been removed.

Remember, the net asset pool is made up of all assets, liabilities and superannuation entitlements of both you and your former spouse or de facto partner, whether it is in joint names or in sole names. If you have a caveatable interest in a property you can apply to lodge a caveat over that property to protect your interest – even though you are not the registered owner of that property.

Once a caveat has been issued on a property, it remains in place for up to three months, or until an agreement has been reached or a Court Order issued to remove the caveat. Once this time period passes, the caveat will cease and the registered owner of the property may sell it or otherwise deal with it without your consent.

Do I have a caveatable interest in a property?

Determining whether you have caveatable interest in a property is a complex legal question.

You do not automatically have a caveatable interest over a property just because you were or are in a marriage or a de facto relationship.

What is important to note that in New South Wales, the Supreme Court has stated tome and tie gain in its judgments, that a right to bring a family law property claim, does not in itself create a caveatable interest.

A caveatable interest in a property may exist if you can prove that you have made:

  • financial contributions to the property (for example, you have made payments towards the mortgage of the property or other financial contributions to the property, like renovations or maintenance)
  • non-financial contributions to the property (this is more difficult to prove however you may, for example be found to have a caveatable interest in the property if there is provision of childcare).

We recommend you seek family law advice in relation to whether or not you have a caveatable interest in a property, as there are risks involved if the Court finds that you do not.

If the decision is that you do not have a caveatable interest then court proceedings should be commenced urgently and where the Federal Circuit Court and the Family Court have jurisdiction to order NSW Lands Services to place a caveat on title.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.

H3: How do I remove a Caveat over a property?

There are several ways to remove a caveat, including:

  • the person who lodged the caveat over the title can withdraw it
  • by Order of the Supreme Court
  • by cancellation of the caveat by a Registrar of the Family Law Courts
  • allowing the caveat to lapse if Court proceedings have not commenced within three months.

How can Ivy Law Group help you?

Our family lawyers have extensive experience dealing with money and property matters and other legal issues surrounding family law. If you’d like help navigating your family law issues, contact our family lawyers at Ivy Law Group on (02) 9262 4003 to arrange a free, no-obligation initial consultation.

FAQs about money and property matters

No. If you are in a de facto relationship, whether same-sex or not, or you and your former de facto partner are in a registered relationship, you can apply for a property settlement and spousal maintenance by way of Consent Orders, Binding Financial Agreement or by commencing proceedings.

You are still entitled to your share of the house, even if you leave the property or it is not legally in your name. It will form part of the total assets and liabilities available for distribution.

If your former spouse or de facto partner is selling your house without your consent, you can lodge a caveat over the property. This will prevent him or her from selling the house. The caveat can be lifted once you and your former spouse or de facto partner have reached an agreement or upon Court Order.

When you separate from your former spouse or de facto partner, make sure you keep track of all your assets, debts and superannuation entitlements until an agreement has been reached. You can collect hard copies of any statements, photographs or other records, or you can save them to a folder on your computer.

If you feel that your former spouse or de facto partner may sell a house, you can apply to have a caveat registered on the property title to ensure that it is not sold. A caveat on a property title warns people that you have an interest in the property.

It’s more cost and time-effective if you and your former spouse or de facto partner are able to reach an agreement about dividing your money, property and other assets.

If an agreement has been reached, it is advisable to lodge the agreement with the Court by way of Consent Orders so that the agreement is legally binding.

When making an application for consent orders, one party will need to have received legal advice. This will ensure the Court accepts the agreement to be a just and equitable division of the property and assets of the relationship. If the Court does not accept that the agreement is just and equitable, you’ll need to amend the agreement.

It is commonly believed that property will be divided equally between you and your former spouse or de facto partner. This is not the case.

It is also common for people to believe they will only receive the property that is in their name. However, this is also not the case.

There is no set formula for a Court to decide what percentage you or your former spouse or de facto partner will receive. Each matter is considered based on its own unique facts.

If a same-sex couple married prior to the recognition of same-sex marriages in Australian law and had already entered into a Binding Financial Agreement, the Binding Financial Agreement will continue to be valid. The Court will treat the agreement as made under the provisions of the Family Law Act 1975.

It depends on the matter. If there are available assets and funds to make up the percentage of the net asset pool available for you to retain, then superannuation does not need to be split. However, if funds and assets are not available to reach that percentage a superannuation split will be the only way to move forward. You can also do a partial superannuation splitting payment.

Each party must pay their own legal fees, unless a Court makes an Order for costs under certain circumstances.       For further information, please read more about Legal fees paid in property settlement matters.

A prenuptial agreement is a term used in the United States of America. The equivalent term, in Australia, is Financial Agreement.

The Family Law Act 1975 allows financial agreements to be entered into during the following periods:

  • before entering a marriage or a de facto relationship
  • during a marriage or a de facto relationship
  • after a marriage or a de facto relationship has ended

To find out more, visit Financial Agreements.

A family lawyer can assist you with family law advice, negotiations with your former spouse or de facto partner, and commencing family law proceedings on your behalf. Even if you do not engage a family law solicitor, it is extremely important that you seek family law advice prior to signing any agreement.

An affidavit is a written statement that sets out a person’s evidence, or information, that helps to paint a picture of their family law matter.

Family Court affidavits are used to provide evidence to the Court to prove or disprove a fact.

Evidence can only be given to the Court in the form of an affidavit unless otherwise ordered by the Court.

When filing an affidavit in Court, it must follow the rules of the specific Court. Find tips on how to write a family law affidavit here or call our family lawyers at Ivy Law Group on 02 9262 4003.

A lawyer, Justice of the Peace or a Notary Public (or Australian Diplomatic or Consulate Officer if you are located overseas) can witness the signature on your affidavit. You must sign the affidavit in front of the witness.  Find tips on how to write an affidavit here or call our family lawyers at Ivy Law Group on 02 9262 4003.

The Applicant is the person who commences proceedings in either the Family Court of Australia or the Federal Circuit Court of Australia.

In a joint application for divorce or an Application for Consent Orders, the person who completes the application is the Applicant and the other party is the Respondent.

It does not matter if you are the Applicant or the Respondent in proceedings, as evidence from both parties is heard and considered by the Court.

The Respondent is the person who responds to the other party’s Initiating Application or Divorce Application.

It does not matter if you are the Applicant or the Respondent in proceedings, as evidence from both parties is heard and considered by the Court.

Yes, you can issue a subpoena if you have commenced legal proceedings in either the Family Court of Australia or the Federal Circuit Court of Australia.

Subpoenas are issued through the Court and can be issued to any person involved in your family law proceedings, including your former spouse or de facto partner, children of the marriage or de facto relationship, grandparents or any other person who is involved in the matter.

Find out more about how subpoenas work in family law proceedings or contact our family lawyers at Ivy Law Group on 02 9262 4003.

An “addback” in property settlement proceedings means an amount of money spent by one or both parties to the proceedings, after separation, which the other party argues should not have been spent. The argument is that the amount should be “added back” into the net asset pool. Whether the Court will consider adding back such spending as a notional asset remains a complicated area of the law.

For further information, please read Legal fees paid in property settlement matters or contact our family lawyers at Ivy Law Group on 02 9262 4003.

The family law term is property settlement matter or financial settlement matter. Basically, it is ending the financial relationship between you and your former spouse or de facto partner.

Yes, in some circumstances. An Order can be set aside, or Orders varied, under section 79A(1) of the Family Law Act 1975 where:

  • there is consent by both parties to the matter
  • there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance
  • the order is impracticable because of circumstances that have arisen since it was made
  • a person has defaulted in carrying out an obligation under the Order and due to circumstances that have arisen as a result, it is just and equitable to vary the Order
  • other exceptional circumstances have arisen since the making of the order meaning that the Applicant will suffer hardship if the court does not vary or set aside the order
  • a proceeds of crime order against property of the parties or against one of the parties.

Read more about ‘Consent Orders’.

Contributions are the things, in percentage terms, that you and former spouse or de facto partner have put into the net asset pool of the relationship.

Contributions can be made before or during a marriage or de facto relationship or at the date of separation, and include:

  • homemaker and parenting contributions
  • direct or indirect financial contributions, including wages, gifts and inheritances
  • other non-financial contributions, including improving a property.

The Court will determine what contribution, in percentage terms, each of the parties has made to the asset pool.

The Family Law Act 1975 enables the Court to take into account any other factor that it regards as relevant to the division of property (or the settlement of property matters). This  includes “waste” in relation to assets and “negative contributions” in relation to serious family violence.

For further information, read Can there be negative contributions?.

If you want to run a waste or negative contributions argument either in Court or during negotiations, we highly recommend you obtain legal advice as it is a complex area of family law.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.

At the Family Court registry in your local area or city. Visit the Family Court website to find your local registry.

If there are property Orders made by either the Court or by consent about the transfer of real property, you will need to follow the terms of the Orders to transfer the title.

The term used in Family Law is Binding Financial Agreement. This is an agreement voluntarily entered into by both parties when an agreement about property settlement matters has been made.

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