All property owned by the parties whether married, defacto or same sex couples either personally or jointly, is considered matrimonial property and is to be divided accordingly. The value of those assets is taken as at the time that the settlement occurs. This includes property that may have been acquired prior to marriage or commencement of the relationship, or property acquired after separation.
The Family Law Act 1975 sets out a four step process to determine how property is to be divided:
Step 1 the assets and liabilities of the parties are listed and the value of each item obtained.
Step 2 consider the contributions of each of the parties, both financial, non financial and family welfare, made during the relationship.
Step 3 assess whether or not an adjustment should take place because of future needs of one or other of the parties. These are called 75(2) factors and include the health and age of a party, who has the primary care of a child or children, and whether there is a significant disparity of income.
Step 4 a division of the assets is made which is just and equitable in all the circumstances.
Married couples
An application for property settlement must be made within 12 months of obtaining a divorce otherwise, you would need to seek the leave of the Court to institute proceedings for property settlement.
De facto couples
Persons in a de facto relationship (who separated after 1st March 2009) come within the jurisdiction of the Family Law Act and have the right to make an application for property settlement if they satisfy certain conditions including living together or having a child or by making a significant contribution to the other party’s property during the relationship. If you separated prior to 1st March 2009 then you need to make your application pursuant to the Property Law Act in Queensland.
Binding Financial Agreements
Married and defacto couples can make a binding financial agreement before and during a relationship and after separation occurs. This agreement enables parties to clearly define how their property is to be divided in the event of relationship breakdown without having to resort to a court process.
Circumstances where an agreement may be sought are where one party has significantly greater assets than the other or one or both of the parties will want to ensure that assets are preserved for children of a prior marriage or relationship in the event of separation.
A binding financial agreement can be set aside if it was obtained by fraud ,or it is void or unenforceable , or it is impracticable for all or part of the agreement to be carried out, or there has been a material change in the care of a child, leading to hardship if the agreement remains and where a party has engaged in unconscionable conduct when making the agreement.
