Property settlement: always remember the four step process

Property settlement: always remember the four step process

This is aimed for people who are or were married and therefore come within the Family Law Act. It also applies for defacto and same sex couples in Quuensland, which largely copied the parts of the Family Law Act to do with property settlement.

The Family Court has said that there is a four step process to engage in when considering property settlement.

Step 1: Identify and value the property pool

This sounds basic, but so often people forget that you need to do this first before you can work out how to cut the cake. Is it a chocolate cake or a delicate sponge? A cupcake or a Bavarian torte?

It is always helpful when going to your lawyers on the first occasion to try and identify what the property, superannuation and debts are and how much you think they are worth.. If you can set them out in a legible table, all the better.

Often there can be arguments about whether or not property is owned by a party, and how much it is worth. If these issues can be sorted out, then it is often easier (and sometimes very easy) to settle.

Step 2: Assess the contributions

These are the contributions to the maintenance, acquisition and conservation of property, the care of any children and homemaking. The contributions can be direct or indirect. For example, an indirect contribution by you might be if your parents gave you $100,000 (lucky you!).

The assessing of contributions is not an accounting exercise but the weighing up of various competing factors. As the Family and Federal Magistrates Courts have said repeatedly- “each case is unique”.

These are sometimes caled “section 79 factors” as this is the section of the Family Law Act that applies to contributions.

Step 3: Consider if future factors apply, and if so how much

It is one thing to say that the contributions determine what is fair or not, but often an adjustment will be made to the amount a person might receive based on one of the stated future factors. For example, an adjustment may be made in favour of a husband because the wife is likely to inherit $1M within the next couple of years. Another example is that an adjustment is made in favour of a wife because she has the care of young children.

These factors are often called “section 75(2) factors” because that is the section in which they are found under the Family Law Act.

Step 4: coming up with a fair result

Finally, the court is required to come up with a result that it considers is just and equitable, or fair. This may mean an adjustment of the division that it has worked out under steps 2 and 3.

Things to Read, Watch & Listen

Forced Marriage

On November 1st 2023, Accredited Family Law Specialist and Page Provan Director Stephen Page presented a paper at the Brisbane Zonta Club about forced marriage. I acknowledge the Jagera and Turrbal peoples, on whose lands we meet today, their elders, past, present and emerging. Ruqia Hidari was aged 21 and living in Victoria, when, according to police,… Read More »Forced Marriage

ACT Government Surrogacy Bill

The ACT Government has today introduced a bill to amend the ACT’s surrogacy laws. The proposed changes are more incremental than fundamental. They include allowing a single person to undertake surrogacy, for the surrogate to be single if needed, a requirement for legal advice and counselling beforehand, a written agreement being required, that traditional surrogacy is… Read More »ACT Government Surrogacy Bill

Planning to resolve: ADR in ART

ADR can help resolve disputes in ART cases. ADR is not limited to mediation and arbitration. Other types of informal dispute resolution can resolve disputes. When assisted reproductive treatment cases go off the rails, they can have the next level of bitterness and volatility. There can be a keen sense of betrayal when things don’t… Read More »Planning to resolve: ADR in ART

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