The court has the power to allocate the property of the parties to a marriage between those parties. This power is set out in s 79(1) of the Family Law Act (“FLA”). Section s 79(2) of the FLA limits the use of this power to circumstances where it is “just and equitable” to make orders for the allocation of marital property. Additionally, the court is required to take account of seven considerations set out in s 79(4) in determining which orders to make under s 79(1). When these issues arise is usually when one would require a Property Lawyer
Section 90SM of the FLA contains equivalent provisions in relation to de facto couples.
Although it is not mandated by the FLA, the case law reveals a preferred approach to the determination of s 79 and 90SM applications. This approach is comprised of 4, inter-rated steps:
- Identify and value the assets, liabilities and financial resources of either or both of the parties.
- Identify and assess the parties’ respective contribution based entitlements in accordance with s 79(4)(a)-(c) or s 90SM(4)(a)-(c) of the FLA. This step involves the determination of the parties’ respective contribution based entitlement. The parties’ contribution based entitlement is ordinarily expressed as a percentage of the net value of the parties’ property.
- Identify and assess the parties future economic circumstances in relation to the factors set out in s 75(2) or s 90SF of the FLA.
- Determine whether it is just and equitable to make an order under s 79(1) or s 90SM(1). The court will determine this issue in view of matters set out in s 79(4) or s 90SM(4) of the FLA.
It is important to note the time restrictions that apply in relation to seeking orders for a property settlement. For married couples, the limit is 12 months from a nullity decree or a divorce decree becoming absolute. De facto couples have 2 years from the date of separation to file an application. In both cases, the court may grant permission to proceed with an application where the applicant has filed outside of the time limit.