Family Law Property Settlement (Financial Cases)
People seek the help of the Court to settle property disputes when they are unable to agree on how the property is to be split after separation. The term "Property" includes real estate, investments, vehicles, furniture and can even include superannuation.
Steps towards resolving your dispute:
There are typically 7 steps involved in resolving a property dispute:
1. Pre-action procedures
Before you can apply to the Court for a property order, you are required to attempt to negotiate a solution with the other party by participating in dispute resolution. For more information regarding this, visit the Family Court website and download Brochure 2: Before you File- Pre-action Procedures for Financial Cases which is found under the Financial Cases section of the web-page. You can also download WLC's Mediation Guide.
2. Applying to the Court for a property order
If you are unable to reach agreement through dispute resolution, or are unable to participate, you may make an application to the Court. For more information about filing an application, you should download the "Property Orders Kit" from the Family Court website.
3. The Procedural Hearing
In general, when one of the parties files an application, you will be allocated a Procedural Hearing. If your case also involves children's matters then the Procedural Hearing will be held after your Case Assessment Conference. For more information about the Procedural Hearing, you should visit the Family Court website and download Brochure 3: The Procedural Hearing, which can be found under Financial Cases section of the web-page.
4. The Conciliation Conference
The next Court appearance is usually a Conciliation Conference. At the Conciliation Conference you will work with a Registrar to try and negotiate a solution to your dispute. The Registrar may prescribe you with procedural orders setting out what you and the other party must do to prepare for the next stage in your case. For more information about the Conciliation Conference, you should download Brochure 4: The Conciliation Conference from the Financial Cases section of the Family Court website.
5. The Readiness Hearing
If your case is not resolved at the Conciliation Conference, your matter will be listed for a Readiness Hearing where it will be decided if your case is ready for trial. For more information about the Readiness Hearing, you should download Brochure 5: The Readiness Hearing from the Family Court Website, which can be found under the Financial Cases section of the web-page.
6. The Trial
The trial is where the Court will decide on the final order. You will be given the opportunity to state your case and submit evidence to the Court. For more detailed information about the trial process , you should read "A guide to representing yourself in the Family Court of WA."
7. The order
As a Court Order is a legally binding document, you can apply to the Court to have the Order enforced if someone breaches it. To download a Contravention Kit, see the Family Court website.
How the court makes a decision in relation to property settlement:
In determining a property settlement, the Court uses the following process to make its decision:
1. Identification and valuation of all property
2. Assessing contributions:
- financial contributions made directly (such as income) or indirectly (such as gifted money) towards the acquisition, conservation or improvement of the property
- non-financial contributions made directly (such as maintenance or repairs) or indirectly (such as sacrificing ones career to look after the children) towards the acquisition, conservation or improvement of the property
- contributions made for the welfare of the family (including home-making or parenting)
3. Consideration of future needs:
This step compensates for any disparity in the financial circumstances of the parties and can result in an adjustment being made in the favour of one of the parties based on their future needs. The Court will consider several factors including age and health of the parties, income, property, financial resources, physical/mental capacity of each party to gain employment, whether either party needs to care for a child of the marriage, etc.
4. Ensuring the settlement is just and equitable:
The Court will then look at the entirety of the settlement to consider what settlement is just and equitable.
5. Spousal maintenance:
If spousal maintenance is sought, the Court will then consider the needs of the applicant and the respondent's capacity to pay.
- For detailed information regarding each of these processes involved in financial cases, you should visit the Family Court website and read brochures 1-5 under "Financial Cases".
- The Family Court holds free information sessions every Thursday regarding property settlement proceedings. Attendance to these sessions is compulsory for all parties to applications for property orders and appointments are not necessary. The sessions start at 11:30 and are held at Level 3, Family Court of Western Australia, 150 Terrace Road, Perth. For more information please see here.
If you are seeking legal advice or representation, you should check out the Law Society's website.
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