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Property and finances after separation

Can I apply to the Family Court or Federal Circuit Court to have my de facto property and money dispute determined?

The Family Court and the Federal Circuit Court can make orders in relation to financial matters following the breakdown of eligible de facto relationships. Previously these courts would generally only make such orders in cases where the parties were married (except in the ACT and NT). Financial disputes between former de facto partners were generally dealt with by state and territory courts, applying the law applicable in that state or territory.

For more information, see the de facto relationships

Should superannuation be included in these orders?

The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory. For more information, see the superannuation section and the Family Law and Superannuation fact sheet.

How does a court decide how to divide assets and debts?

There is no formula used to divide your property. No one can tell you exactly what orders a judicial officer will make. The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage (see Sections 79(4)and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)). The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

  • working out what you've got and what you owe, that is your assets and debts and what they are worth
  • looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
  • looking at indirect financial contributions by each party such as gifts and inheritances from families
  • looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
  • future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.

The way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.

Is there a time limit for applications for property adjustment?

If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.

If you were in a de facto relationship, your applications for property adjustment must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission of a court. This is not always granted.

FamilyCourt.gov.au

 
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Case : Edmunds & Edmunds [2018] FamCAFC 121 (6 July 2018)

This was a Family Law matter about an lodged by the wife six years after expired relating to .

FACTS

The parties commenced cohabitation in 1992 and married in 1993. They separated in late 2006 or early 2007. They were divorced on 16 January 2009.

The parties had three children who were born in 1994, 1997 and 2000. The youngest child was almost 17 years old at the time of the orders of the primary judge.

Issues :

1) Whether the primary judge made a final determination instead of assessing whether the wife had a prima facie case;

Ground 1 asserts:

Her Honour did not assess whether the Appellant had a prima facie case to make at trial when put at its highest, and thus failed to exercise the discretion at section 44(3) of the Family Law Act 1975: instead Her Honour:

     Decided or prejudged the case under section 79(4) instead of assessing whether the Appellant had a prima facie case worth pursuing;

2) Whether the primary judge failed to assess the wife’s case at its highest;

3) Whether the primary judge erred in finding that the wife had a weak prima facie case;

4) Where the primary judge erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property;

5) Whether the primary judge made a material error in respect of a finding about the husband’s post-separation contributions to superannuation;

6) Whether the primary judge took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife’s prima facie case;

7) Whether the primary judge erred in failing to find that the wife’s reliance on an agreement in relation to the parties’ property was a reasonable explanation for her delay in instituting property proceedings;

8) Whether the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted

HELD : Appeal allowed.

RULE APPLIED :

Where leave is required to appeal an order made pursuant to s 44(3) of the Family Law Act 1975 (Cth)

Where the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused.

HELD : The appellant is granted leave pursuant to s 44(3) to commence proceedings under s 79 of the Family Law Act 1975 (Cth).

COSTS :

The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.



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You can apply for financial assistance from Victim Assist Queensland if you have been a victim of an act of violence in Queensland. This includes domestic and family violence.

You need to apply for financial assistance within 3 years of the act of violence.

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  • Again another interesting post Miranda.  

    I bet not many victims of #FamilyViolence are aware they can apply for financial assistance.  This could be the difference in some cases whether a person makes the decision to get out of a violent relationship

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