The Family Court (The Court) has jurisdiction relating to the property dispute between spouses.
The Court generally adopts a three stage process in which:
Firstly: Needs to identify and value the matrimonial assets and all matrimonial liabilities.
Secondly: Needs to assess the parties contributions to the acquisition conservation and improvement of the matrimonial assets.
The contributions can be economic and non-economic.
Once the above is determined the Court then generally determines the
percentage division of the matrimonial asset pool.
Thirdly: The court has power that in order to ensure that justice is done as between the parties the court can make a further adjustment to take into account the needs of the parties after separation. Accordingly the following matters are taken into account:
- Each parties health
- Income
- Earning capacity
- Financial resources
- Superannuation
- Care of children under the age of 18
- Amount of child support.
PROPERTY DISPUTES AND SETTLEMENTS
The Family Law Act requires the parties to comply with the pre-action procedure prior to commencing a case.
WHAT IS REQUIRED?
The aim of the pre-action procedures is to explore areas of resolution and, where disputes cannot be resolved, to narrow the issues that require a court decision. This should control costs and if possible, resolve disputes quickly, ideally without the need to apply to a court. The pre-action procedure applies to:
- Anyone considering starting a case
- Anyone named as a respondent if a case is started, and
- Their lawyers (if any)
The Family Rules require prospective parties to genuinely try to resolve their dispute before starting a case and we always strongly suggest to clients that they attempt to negotiate and sort out their differences instead of going to court.
It is no secret that going to court is expensive, and we always remind our clients that sometimes agreeing for that 5% difference earlier on in the matter may in fact save you much more then going to court and fighting over it for several months and maybe even years!
LAWYERS OBLIGATIONS
Lawyers must and should as early as practicable:
- Advise clients of ways of resolving the dispute without starting legal action.
- Advise clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty.
- Subject to it being in the best interests of the client and any child, endeavour to reach an agreement rather than start or continue legal action.
- Notify the client if, in the lawyers opinion, it is in the clients best interest to accept a compromise or settlement where, in the lawyers opinion, the compromise or settlement is a reasonable one.
- In cases of unexpected delay, explain the delay to their clients and whether or not the client may assist to resolve the delay.
- Advise clients of the estimated costs of legal action.
- Advise clients about the factors which may affect the Court in considering costs orders.
- Actively
discourage clients from making ambit claims or seeking orders which the
evidence and established principles, including recent case law
indicates, is not reasonably achievable, and provide clients with
documents prepared by the Court abou
- The social and legal effects of separation
- The services provided to families by the Family Law Courts and by government, community and other agencies, and
- The obligations created by an order and the consequences for failing to comply with an order.
- The social and legal effects of separation
If your circumstances are or if you think that your case is complex and you need to retain professional services you can always contact us on this site for professional and comprehensive advice.