Clients often ask their separation lawyer, “What kind of property Orders will the Court make?”
In the 2012 case of Stanford; the Appeal Court of the Family Court decided that in some cases, the Court may decline to make any property Orders between partners who have separated. Most parties who commence their case in the Court expect that the Judge will make some type of Order for a property adjustment.
In the case of Stanford, divorce lawyers saw that sometimes the Court will not make any order. Before the Court makes an Order the separation lawyer needs to be able to show that it is just and equitable to do so.
In that case the separation lawyer for one of the parties was able to show that because of the way that the parties to the relationship managed their finances separately during the relationship, that the arrangements that they themselves had worked out should not be changed. Although they had been together for many years and one party had a lot more in assets and super than the other party, the Court chose to not make a property Order.
Could this apply to your circumstances? You may need to consult a separation lawyer to find out.
In a recent case of Konda and Konda one party transferred the property owned by him to a relative making it difficult for the other spouse to make a property claim. The divorce lawyers were able to obtain from the Court an Order that the transfer that had been made to the relative should be reversed.
This application by the separation lawyer was under section 106B of the Family Law Act. There were a number of circumstances in the case which caused the Court to take the action that the divorce lawyer had suggested.
The things that were relevant were that the transfers were made at a time when there were problems in the marriage. The transferring party has also not been full and frank in their disclosure to the Court and the other party. This did not reflect well on them and this type of conduct no doubt made it much harder for the separation lawyer to resist the Court orders.
The options and the way a party conducts their case is very important. Advice on theses aspects from a separation lawyer is essential.
Separating parties can find it difficult to reach an agreement where one party to the relationship has brought significant assets to the relationship.They may seek advice from their divorce lawyer as to how the Court will assess those circumstances. In a recent case of Egan the separation lawyers for each party were making submissions to the Court as to whether in a long marriage, contributions made by only one party marriage should be relevant and how should they be assessed. In that case the divorce lawyer for the party bringing the property to the relationship was able to persuade the Court that a substantial adjustment should still be made their client’s favour for the property they introduced to the relationship even though they had been married for a very long time.
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For advice about negotiating a Property Settlement Agreement contact us on 1800 300 170 or email us at familylaw@matthewsfolbigg.com.au
