How does the Family Court decide property split when you separate?

Wednesday, 12 September, 2018

If your case goes to trial and a magistrate determines a property settlement for you, one of the main objectives of the court is usually to look for a split of your net assets that allows a clean break for the divorcing couple.

What is a clean break?

A clean break aims to finally dissolve the financial relationship between you and your ex-partner and avoid any further association with each other in the future in relation to property and finances.

The Court will seek to divide your assets in such a way that is just and equitable and avoids, if possible, the need for one person to continue to support the other's ongoing living expenses by making payments to them in the future. It's important to understand that just and equitable doesn't necessarily mean equal.

What does a no-fault jurisdiction mean for you?

Australia has a 'no-fault' divorce policy and accordingly, the Court does not consider the reasons your marriage or relationship has ended and compensate one person financially for the bad behaviour of the other.

The only exceptions to this principle might be in circumstances where there has been an extreme case of family violence, fraud or significant and deliberate erosion of the asset pool.

Attending mediation

Mediation, before you file an application, is mandatory in parenting matters but not in property matters. Before a property settlement case will go to trial in court, you are likely to be ordered to attempt to resolve your differences through mediation This can take several different forms such as conciliation conferences in court with a registrar, or private mediation. You are encouraged to show that you and your former partner have made an effort to settle the dispute using the services of a mediator, lawyer or alternative dispute resolution practitioner.

Where there are exceptional circumstances such as not being able to locate your ex-partner or when family violence is an issue, you can apply to the court to waive the requirement of mediation.

The long and expensive court process

Pursuing a property settlement through the court is invariably a long and expensive process. There are certain instances where court proceedings are inevitable but you may well find you would be far better off to remove the emotion from your negotiations, come to a compromised agreement with your ex-partner as soon as is practical and free yourself to move on to more positive aspects of your life.

The approach currently taken by the Court in determining property applications is commonly referred to as the ‘four-step-process’.

Read: What is the Four-Step process of divorce property settlement?

What is a property Settlement?

What is included as property to be split?

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Christine Weston Divorce Resource