Sorting Out The Finances

There is no presumption that each spouse will receive 50% of the property. In making a property order the Court will look at the contributions of each spouse, both financial and non-financial, the homemaker or parenting contributions and the ability of each spouse to provide for themselves and any children in their care in the future.

A couple living or intending to live together can draw up a cohabitation agreement saying how property will be divided should the relationship end. To be enforceable, agreements must be in writing and signed by both partners. Once a written cohabitation agreement has been made it can be varied or revoked by written or verbal agreement, unless the agreement is a ‘certificated agreement’. In this case it can only be varied or revoked by another certificated agreement.

It is perfectly acceptable for a party to be self represented in a Family Law proceeding and many people choose this option. However, matters are often very complicated to those not familiar with the area of law or the law in general and they can find the process extremely time consuming and frustrating.

The court can also decide whether a greater share of the property should be given to the person who has the greater need in the future. It will look at matters such as:

• The age and health of both people - the ability of each person to support herself or himself in the future.
• Whether either person is supporting another person, such as a child.
• Whether a person is being supported by someone else, such as a new partner or parents.
  

The court looks at the history of the marriage and determines how much each person has contributed to buying, maintaining and improving the property.

Disputes over property between de facto spouses are dealt with under the De Facto Relationships Act 1996. These matters are heard in the South Australian courts, not the Family Court or Federal Magistrates Service. The Act applies to heterosexual relationships where the partners have lived together for at least three years or there is a child born to that relationship.

The court views superannuation as a financial resource rather than as actual property because people who are members of a superannuation fund are not generally entitled to any benefits until they retire. A person who has looked after children has usually made an indirect contribution to the build-up of the superannuation entitlement during the marriage, but the court has limited power to order direct payments to the non-member partner.

You can leave the family home and take your fair share of the household goods if it is likely to be difficult to obtain them later. If you leave the family home it does not mean that you lose your entitlement to a fair share of the property. However, you should bear in mind that court proceedings are an expensive and time consuming way to recover property.

Collaborative law is a non-adversarial process for achieving a fast and fair divorce settlement for both parties that concentrates on maintaining an amicable relationship between divorcing couples and their children. Under collaborative law:

• Divorcing couples and their attorneys agree to settle the divorce out of court.
  
• Each party engages a team of divorce professionals including lawyers, financial advisors and counsellors who work together to reach an agreement.
  
• If the process fails, both parties' teams have to withdraw.