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Overseas property is an asset and must be declared along with all other property of the marriage or de facto relationship. Failure to disclose property can result in an unfavourable result to the non-disclosing party.

Full and frank disclosure must be demonstrated when identifying and declaring assets. Failure to fully disclose may later provide the Court with the option of favouring the other party due to dishonesty or lack of credibility on the part of the non-disclosing party.

Parties are often able to come to an agreement about a property settlement without Court involvement. If you and your partner reach an agreement you can apply to the Court for Consent Orders which is a relatively simple and inexpensive process.

Ensuring the Consent Orders are valid and binding

Full and frank disclosure must be demonstrated when identifying and declaring assets. Otherwise, your Consent Orders may be subject to a review and the Court has the option of favouring the other party due to dishonesty on the part of the non-disclosing party.

Legal representation is essential to ensuring full and proper consideration is given to all matters. When Consent Orders are sought, there should be enough information before the court to enable the court to make its own enquiry as to the justice and equity of the Consent Orders.

The lawyers at Mathews Family Law & Mediation Services Melbourne have extensive experience negotiating family law property settlements. We will carefully consider all aspects of your case and advise you on your specific situation. We will then negotiate in an attempt to reach an amicable outcome. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

Mathews Family Law is a leading family law firm in Melbourne. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Family violence or domestic violence often accompanies relationship breakdown. Domestic abuse can take many forms and can have disastrous effects on the lives of adults and children.

Where violence has such a profound impact on the victim that they were unable to contribute financially to the family or contribute non-financially to the welfare of the family, then violence may become a factor in a property settlement.

Alternatively, violence or other conduct may have resulted in long term effects to the party’s health and therefore could be a factor to consider under the additional factors of s 75(2).

There is no automatic right to receive or a duty to pay spousal maintenance. In certain circumstances, separating couples can have an obligation to provide ongoing maintenance for their former partner. The Family Law Act provides that one party is liable to maintain the other party to the extent that party can reasonably do so and only in circumstances where the other party is unable to support him/herself adequately. Spousal maintenance is different to child support.

The decision to order spousal maintenance and how much you or your former partner should receive is based on a range of factors. The court is required under the Family Law Act to take the following factors (amongst others) into account:

• the ability of the other spouse to pay,
• the standard of living of the spouses,
• the income capacity of the spouse claiming maintenance and whether this has been negatively impacted by the marriage,
• any child support that is being paid and
• the health of the spouses.

Even if one party cannot adequately support him/herself the other party is only liable to support that party so far as they are reasonably able to do so.

The courts also have an obligation requiring them to ensure that any Orders made finalise as far as practical the financial relationship between the parties. This means that where a spousal maintenance order applies, the tendency is for the order to only apply over a short period of time. Certain events will also bring an obligation to pay spousal maintenance to an end. For more information, see here.

Where the property settlement is not yet finalised, an interim spousal maintenance order be made in response to an urgent application.

De facto partners (and same sex partners) can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

Urgent applications and Interim Orders for spousal maintenance

Spousal maintenance is usually considered as part of an overall settlement of financial matters, although, the Court does have the power to make Urgent and Interim Orders for spousal maintenance until a final trial is reached.

How long do spousal maintenance Orders apply?

A spousal maintenance order will automatically end if the party receiving maintenance dies or marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.

The lawyers at Mathews Family Law & Mediation Services Melbourne have extensive experience negotiating property settlements generally. Specifically, we can advise on whether spousal maintenance is likely to be a relevant consideration for your situation. We can also advise on the merits of negotiating for or applying to the court for spousal maintenance.

Mathews Family Law is an Australian law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

A financial statement must be completed when filing an application or responding to an application prior to a property settlement. This form provides for full disclosure of property, liabilities, financial resources, superannuation, employment details and other financial details.

The financial statement takes the form of an affidavit, which is a sworn document of the court. When providing information in an affidavit, you are swearing to the court that it is true. When identifying assets full and frank disclosure should be demonstrated. For these reasons, it is important to complete the form truthfully and accurately. 

You also must update the statement if there are any changes in income. In situations where the matter proceeds to court, the form should be as accurate and as up to date as possible before the final hearing.

It is sensible to seek the assistance of a lawyer in completing and updating this form. A lawyer can ensure the form is completed correctly and help to avoid any problems that might arise due to errors in completing the form.

Unless the property settlement is fair, the arrangements should not be finalised. This requirement is the fourth step in the four step process of determining a property distribution as provided by the case Hickey and Hickey. What is just and equitable depends on the circumstances of the particular case.

What is just and equitable in family law proceedings?

After assessing steps 1, 2 and 3, the Court must decide whether the final result is fair for each of the parties. To achieve this aim it is important for both parties to know their obligations and entitlements. What is just and equitable depends on the circumstances of the particular case.

Case: Husband receives $1M out of a $66M property pool

An example of the just and equitable considerations being applied can be seen in the case of Cook v Langford. Here, the total property pool was $66 million, however, the Court found that the husband was only entitled to $1 million based on his overall position and contribution to the assets. This was considered as neither unjust nor inequitable.

Deciding what is just and equitable requires:

• considering the effects of the findings of the first two steps (specifically Step 1: What assets are in the asset pool? Step 2: What contribution did each party make?);
• considering the effects of the determinations regarding the contributions of the party which are influenced by the s 75(2) additional factors (specifically factors such as the age and stage of health of each party, responsibility each party to care for a child, the income, property and financial resources of each party); and
• deciding what order is just and equitable taking into account all the circumstances of the parties.

This final step recognises that calculation of percentages or an equal distribution is not necessarily the fairest outcome. For instance, one party may have an amount in superannuation that is equal to the property in the asset pool. If this party receives the superannuation and the other party receives the property in the asset pool the distribution is equal. However if the superannuation cannot be used for several years, the outcome is unfair. It is for the judge to decide what is just and equitable, with the main concern being the present and future needs of both parties.

Click here to apply sample percentage divisions of your asset pool using the Mathews Family Law & Mediation Services Asset Pool Calculator.

The third step involves assessing the future needs of each party. Factors to consider include:

• the age and state of health of each party,
• the income, property and financial resources of each party and their physical and mental capacity for achieving gainful employment,
• responsibility for a child of the marriage who is less than18 years old,
• commitments necessary for a party to support themselves or to support any other person that the party has a duty towards,
• eligibility for a pension, allowance or benefit,
• the standard of living which is reasonable in the circumstances,
• whether the relationship has affected the earning capacity of a party and to what extent,
• if either party is living with someone else, the financial circumstances arising from cohabitating with another person,
• the terms of any Orders made in relation to the property of the parties and
• the terms of any binding financial agreement.

Re-partnering is a commonly assessed factor. The financial situation resulting from the new relationship may influence the property settlement.

If a property settlement application proceeds to Court, the Court may place a great deal of weight on these factors or it can choose to decide they have a minimal impact. The Court will apply an adjustment in favour of one or other of the parties to compensate for any difference in their future circumstances.