You have, or your partner has, commenced property and child-related proceedings in the Family Court already. You may be representing yourself, or you may have a lawyer but are seeking a second opinion.

Regardless of which stage of the court proceedings you find yourself at, we can provide you with guidance, advice and legal representation.

DIVIDING ASSETS

Unlike in other countries, the division of the assets and liabilities of a relationship in Australia is not automatically 50/50.

Family lawyers and the Family Court use a four-stage process for determining the division of assets and liabilities.

The first stage is determining the net asset pool. This means:

• Tallying up all the assets of the relationship – i.e. your assets, your partner’s assets, and jointly owned assets, if any.
• Tallying up all the liabilities of the relationship – i.e. your liabilities, your partner’s liabilities, and joint liabilities and debts, if any..
• Subtracting the total value of all liabilities from the total value of all assets, to determine the value of the net asset pool.
• The second stage involves determining each party’s contributions, specifically: contributions at the commencement of cohabitation, or what are known as initial contributions; commencements during the relationship; and commencements since the date of separation.

GOING TO COURT AS A LAST RESORT

There are three types of contributions:

• Financial contributions. These include things such as lump sum payments (e.g. paying the deposit on a house), and ongoing payments for things like home loan repayments, utility bills and groceries.
• Homemaker and parent contributions. This means raising children under 18, and various homemaker tasks such as cooking, cleaning, washing and gardening.
• Non-financial contributions. This means contributions that are neither financial contributions nor homemaker and parent contributions. Examples include undertaking renovations and improvements to the family home, or working in a spouse’s business for no wages.

Based on each party’s contributions, the Family Court or a family lawyer will determine an appropriate percentage division of the net assets of the relationship.

The third stage involves determining what each person’s needs will be after the end of the relationship. These are commonly referred to as “future needs” factors. “Future needs” factors include things such as: a person’s age and health; a person’s income, earning capacity and financial resources; care of children under 18; and whether a person is receiving child support.

If one party has greater future needs than the other, they will get a percentage adjustment in their favour.

For example, a percentage division of net assets based on the parties’ contributions might be 50/50. However, the wife may then get a 10% adjustment in her favour, because she has greater future needs than the husband. This would result in a final percentage division of net assets of 60/40 in favour of the wife.

The fourth and final stage of this four-stage process is to make sure that the proposed percentage division of net assets is just and equitable. This is because the Family Court has a duty to make property and financial orders that are just and equitable.

We can help you understand what a fair division of net assets looks like in your situation.

GOING TO COURT AS A LAST RESORT

SETTLING A PROPERTY CASE IN THE FAMILY COURT

The fact that you are in the Family Court does not mean that your matter cannot or will not settle. The good news is that the vast majority of cases in the Family Court settle before they ever get to a final hearing or trial. The Family Court also actively encourages the parties to reach a resolution before they reach the trial stage.

In a property case, one very important court event is the Conciliation Conference. This is the Family Court of WA’s one and only attempt to mediate the property dispute between you and your ex-partner. Conciliation Conferences are often successful in helping the parties reach a final agreement.

A Conciliation Conference is essentially a mediation-style conference with a Family Court Registrar or Magistrate, who does their best to encourage the parties to reach an agreement and avoid further court proceedings. It involves sitting in a conference room with your ex-partner and your lawyer (if you have one). The court normally allocates about 2 hours for a Conciliation Conference. If the parties reach an agreement, then the lawyers can draw up your agreement in a document called a Minute of Consent Orders.

The fact that you are in the Family Court does not mean that your matter cannot or will not settle. The good news is that the vast majority of cases in the Family Court settle before they ever get to a final hearing or trial.

You and your ex-partner can reach an agreement at any time during the child-related proceedings. For example, you and your partner might come to an agreement after an interim hearing, or after the release of the Single Expert Witness’s report.

You and your partner can formalize your agreement by filing a Minute of Consent Orders in the Family Court.