Property Disputes & Spousal Maintenance
Family Law
Settling property disputes and spousal maintenance when relationships break down
Laws that apply to property settlements and spousal maintenance are governed by the Family Law Act 1975 in all Australian States and Territories, except for Western Australia. Whether you are separating from your spouse, or your de facto partner, you will likely have to go through a property settlement.
There is no set formula as to how property is to be divided when a relationship breaks down. It is often assumed that each party is automatically entitled to 50% of all assets, including the division of the family home, furniture, motor vehicles, investments, and superannuation. However, this is not always the case. The courts outline a four-step process that must be followed when assessing a property settlement.
We’re here to help you negotiate in an effective way with your former spouse to ensure a fair outcome can be reached for all parties.
In addition to property settlements, spousal maintenance may also be required when one partner is unable to adequately support themselves and the other partner has the financial capacity to provide that support.
In considering if spousal maintenance is required, and how much should be paid, the court will consider the “reasonable” weekly needs of each party and if after allowance for such “reasonable” weekly needs, there remains the capacity to pay support to the party who requires financial assistance.
Spousal Maintenance Orders can be made on an urgent basis, to deal with short-term financial support pending finalisation of property settlement matters, and also on a final basis, to extend past the final judgment and to enable the financially dependent party to have the time they need to upskill and re-enter the workforce, or otherwise invest funds to find a method to financially support themselves.
Our experienced team provide practical legal advice regarding claims for spousal maintenance and the division of property. It is important you seek trusted advice as soon as possible after separating from your partner to determine your rights and obligations.
Download our Info Pack
Download our Info PackTo find out more about property settlements, provide your details below and our Information Pack will be sent to your inbox.
The five-step process to assessing a property settlement:
The Court is not required to make a property settlement order simply because a married or de facto couple has separated, only if it is just and equitable to do so.
Evaluate the contributions made by each party to the marriage/de facto relationship. There are three types of contribution categories considered:
- Financial contributions such as receiving wages and bringing assets into the relationship;
- Non-financial contributions such as conducting renovations, doing the accounting for a family business, etc.;
- Contribution to the welfare of the family, such as a parent or homemaker.
Assess the future economic needs of each party. These relevant factors can include the age and health of each party, which party has the care and control of any children of the relationship under 18 years of age, any disparity in income and earning capacity, and payment of child support.
Review the proposed division of assets to ensure it is just and equitable. At this stage the court will consider any further adjustments necessary to ensure that a fair settlement is achieved.
Financial assistance is available for property settlements
Are financial concerns hindering your ability to navigate legal proceedings post-separation? JustFund can provide flexible and accessible solutions, improving access to justice and financial security.
As an accredited partner of JustFund, Attwood Marshall Lawyers is pleased to offer clients an exclusive funding option for eligible family law matters.
JustFund is Australia’s premier family law finance provider, offering a line of credit designed specifically for individuals going through separation. This financial assistance enables you to cover legal fees and disbursements.
Simply make an application, and once approved, you can draw down on your line of credit as needed to pay legal bills and disbursements. Unlike a traditional loan, you only repay the loan when you finalise your legal matter and you only repay from the settlement proceeds you receive.
Due to the unique nature of a line of credit for family law fees, JustFund looks beyond what a traditional lender sees and are not fixated on things like your credit score, employment history, or income when considering eligibility. Instead, JustFund assesses the individual behind each application and their legal entitlement holistically, on a case-by-case basis.
Attwood Marshall Lawyers can apply to JustFund on your behalf. Your lawyer will provide the necessary information to speed up the assessment process.
You will be required to complete a final questionnaire provided by JustFund, who will then assess your case (typically within one week).
Upon approval, you’ll need to e-sign an Agreement and Letter of Instruction. JustFund will advance funds for your legal expenses until your matter settles.
When your matter concludes, repay your loan from what you receive from your property settlement.
Frequently Asked Questions
At settlement of your matter, you will be required to repay the funds you’ve used, plus:
- An assessment and administration fee. This fee starts from $590 for credit lines up to $15,000. You do not pay this fee upfront. It is repaid at settlement.
- A monthly fee of $49 per month. You do not pay this fee each month. It is repaid in lump sum at settlement.
- Interest – variable rate. Interest is repaid at settlement and does not compound. Interest is calculated on the total drawn balance from the date of the funding agreement, based on what the interest rate is at the time.
Property matters and parenting matters that are connected to a property matter. Unfortunately, parenting matters on their own cannot be funded through JustFund.
There is no maximum amount you can borrow. The minimum loan amount is $5,000.
You only pay back the amount you used for your legal matter.
Taking security is not always a requirement. JustFund will assess security requirements on a case-by-case basis. Funding can still be provided if you’re not on property title.
FAQs – Family Law Property Disputes and Spousal Maintenance
For married couples who have separated, they can apply for, or negotiate a property settlement with their spouse immediately. You do not need to wait for divorce to be finalised. Prior to divorce, you will not be restricted by any time limitations.
For parties who have divorced but not yet resolved property matters, it is important to be aware that court proceedings need to be commenced with 12 months of the date of divorce (i.e. the date the divorce order takes effect).
For de facto couples, so long as the relationship qualifies as a ‘de facto relationship’ under the Family Law Act and the couple have been together for a total period of at least 2 years, then parties in de facto relationships can commence court proceedings for a property settlement from the time they separate until two years after separation.
If you separate from your partner and put an informal agreement in place without obtaining legal advice, the odds are it is not going to be legally binding under the Family Law Act.
By formalising your property settlement in a legally binding way, you bring your former partner or spouse’s property settlement rights to an end. You can have peace of mind that your former partner cannot come back in the future seeking further support or assets.
By formalising a property settlement under the Family Law Act, tax benefits can arise for spouses transferring property to each other as part of the division of their asset pool. Where one spouse transfers their interest in the family home or an investment property to the other pursuant to a Court Order or a Binding Financial Agreement, the transfer will not trigger a Capital Gains Tax (CGT) event and the transfer will be exempt from any State Government stamp duty.
Superannuation falls within the definition of ‘property’ under the Family Law Act 1975 (Cth). This means all superannuation will be included in the asset pool. However, the court will consider the superannuation each spouse brought into the relationship and the other contributions made by both parties when dividing up the asset pool.
Reasonable weekly needs vary from case to case and will take into account your individual circumstances. They can include:
- Rent or mortgage payments;
- Car loan repayments;
- Groceries;
- Petrol and car expenses;
- Insurances such as house, health and car insurance;
- Medical costs, including pharmaceuticals;
- Telephone and internet costs;
- Household utilities such as electricity, gas and water;
- Children’s entertainment expenses;
- Household maintenance costs.
It is important that you are realistic in making a claim for spousal maintenance and remember that it is a claim for support for your “needs” not your “desires”.
If you cannot reach an agreement with your former spouse in regard to spousal maintenance, you can file an application in the Federal Circuit Court seeking spousal maintenance orders. You will need to set out your income and expenses in a Financial Statement when you make an application and your spouse will need to do the same when they file a response.
Our family law team can assist you with preparing your application or responding to an application to ensure your interests are protected and your matter can proceed smoothly.
In order to establish what your income is, you need to provide copies of your payslips (if applicable), contract of employment, Centrelink statements and any document which evidences money or “saleable” assets that you hold, such as bank statements, share certificates, etc.
You will then need to provide evidence or tax invoices of your weekly expenses, or bank statements to show direct debits and payments made for these expenses.
For anyone who is divorced, you have 12 months from the date of your divorce to apply for spousal maintenance. For de facto relationships, you have two years from the date of final separation to make an application for spousal maintenance.
If you do not make your application within these time limits, you can seek special permission from the court to file an application out of time. However, this may not be granted unless you have a very good reason for failing to file your application within the time limit.
