People who have been involved in Family Law separations often labour under the misapprehension that they must wait 12 months until they can resolve their property issues. This is not correct. In fact property matters can be resolved immediately there is a marital separation. In dividing the assets of a marriage, the Family Court will look at what assets the parties bought into the marriage, what contributions the parties have made respectively throughout the marriage (including contributions as a parent and homemaker) and the current and future needs of the parties. It is common that the parent who looks after the children (if any) will get a larger share of the assets of the marriage because their needs will be higher:
- Because they have the children to care for.
- Because caring for the children will reduce their ability to earn a higher income.
A common problem in marital separations is that one spouse will stay in the home and sometimes will change the locks and refuse to do anything to resolve matters. In cases such as these, application can be made to the Family Court for an Order that the family home be sold and that the sale proceeds be divided amongst the parties.
Another problem that often occurs is that one of the parties will have a substantial investment portfolio or alternatively has managed the parties finances throughout the relationship and has hidden assets in various places so that the other party is not sure as to just what if anything they own.
In cases such as this application can be made to the Court for Orders that the parties provide sworn documentary evidence disclosing their various income and assets so that a proper assessment can be made of the marital assets with a view to dividing them.
Another common problem in Family Law break-ups is the issue of superannuation. Sometimes people will think that superannuation is not relevant to them as it is not accessible until the party reaches the minimum retirement age (usually 55). Superannuation is one of the more difficult issues in Family Court proceedings, however it must be factored into any property settlement and Orders can be made for a division of the superannuation upon the eventual retirement or for a trade off of other assets now.
One of the most important matters in any Family Law property settlement is to ensure that it is binding on each party. Parties can sign all kinds of documents, however those documents will not be binding in any way shape or form unless the agreement has been lodged and approved by the Family Court. Any one involved in a Family Law property settlement should be careful to ensure that any agreement is binding as it is not uncommon for parties to make claims in the future many years after separation (and even divorce).