In determining an application for adjustment of property interests under the Family Law Act, the Court essentially adopts a four stage approach:
Firstly, the Court attempts to identify and value all of the property and resources of the parties, including any property held by each party in their own name and property held jointly. The value apportioned to the property is normally the amount that would be received if the property and/or resource is sold or realised.
The second stage entails a historical review of the marriage or relationship where the Court attempts to assess the contributions by both parties toward the acquisition, conservation and improvement of the property and the resources of the parties. This examination includes an assessment of contributions made both indirectly and directly toward the property, both of a financial and non-financial nature. The Court also takes into account other contributions made by the parties during the marriage or relationship, including, the role of the each party as homemaker and parent and other contributions of each party to the general wellbeing of the family.
After making an assessment of the contributions, the Court then turns to the third stage of the process and assesses the respective parties future needs. The Court takes into account such things as the property and resources available to both parties, the earning capacities of the parties, any health issues and the age difference between the parties. At this stage the Court considers whether there should be an adjustment to the division of the property to allow for any disparity between the parties' future needs and capacity to provide for themselves or relevant others.
Finally, the Court reviews the results of its examination of the above matters to decide if the result seems "just and equitable" in all of the circumstances of the case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
