Property Division in the Family Court

Property Division in the Family Court

The dividing up of assets is an unavoidable task to carry out upon the breakdown of a relationship. Property Settlement is the process by which both parties will attempt to negotiate to form an agreement concerning income, assets and liabilities.

It is essential to get legal advice from a family lawyer if you are involved in a relationship breakdown. This is because the law states that property settlement agreements can only be recognised if the parties involved have sought independent legal advice.

Asset-By-Asset Approach vs Global Approach

There are two approaches to establish the division of the pool of assets, asset-by-asset and the global method.

The process for determining a property settlement usually involves “pooling” all the property, valuing it and then dividing it as an overall pool (this is called the “global approach”). However, it is open to the Court to consider the contribution each party has made with respect to each item of property. This alternative option is referred to as the “asset by asset” approach.

The Family Court can take an asset by asset approach or what is called a “two pool” approach. This different approach can make a case more complex and will not readily be adopted by a Court. The Court would have to be persuaded that it is an appropriate case for the Court to depart from the global approach and for the Court in dividing the property to deal with the property on an asset by asset basis.

For example:

• Where an inheritance was received late in the relationship by one party and perhaps after separation;
• Where the relationship is short and the parties have kept their assets separate; or
• Where there is a significant amount of superannuation.

Care should be taken not to be persuaded into easily adopting an asset by asset approach because this can result in exclusion of property from the pool leaving only a smaller pool of property for division between the parties.

It is recommended that you consult a lawyer before you separate so that you know your options early on and that you do not do anything that may jeopardise your family law proceedings in the future. Straits Lawyers are now offering online services in both English and Chinese.

Simply purchase our online services via this link: https://straits-lawyers.square.site/product/binding-financial-agreement-consultation-bfa-/5?cs=true

Alternatively, you can email us at info@straitslawyers.com or call at 08 8410 9069 to find out more.

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Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.