Following the breakdown of a marriage, an appropriate division of property is critically important to the financial future of both parties. Prompt legal advice is vital.
- The Court will first assess what makes up the asset pool and the value of same.
- The Court evaluates the financial and non-financial contributions each of the parties to the asset pool, including where there are children, contribution as homemaker and parent. This step will take into account unusual contributions such as pre marriage assets and inheritances or gifts received during the marriage or after separation. The Court assesses these contributions by in terms of a percentage.
- The Court will consider each of the parties future needs means and responsibilities, taking into account such matters as the age and state of health of the parties, their income and income earning potential and the ongoing care of children.
- The final step for the Court to determine is whether the conclusion that they have reached taking into account the above factors ends up providing a just and equitable (or fair) division of the assets between the parties.
A person has a responsibility to financially assist their spouse (including de facto and same sex partner) if the spouse's personal income or assets cannot meet their own reasonable needs.
An application for divorce can be made by either party to a marriage or by both parties jointly, after the parties have been separated for a period of at least 12 months immediately preceding the filing of the application.
De Facto/Same sex relationships
Upon the breakdown of a de facto or same sex relationship either party can seek to negotiate, mediate or litigate any property issues arising from the breakdown of their relationship.
Family Dispute Resolution (FDR) or mediation is now required in all parenting matters before Court proceedings can be initiated. This means you must have at least tried or been invited to participate in mediation.