Is the starting point for property settlements 50/50?
In Mallet v Mallet (1984) 156 CLR 605;  HCA 21, the High Court rejected that in a long marriage, the starting point was that the contributions were equal. It was held that an equal division of the assets as a convenient starting position in property cases was not correct, and there should be no presumption of equality and each case must be considered on its individual facts. The court must exercise its wide discretion by evaluating the actual contributions made by each party.
Can we accurately predict outcomes for you?
ANSON & MEEK  FAMCAFC 257 (7 DECEMBER 2017) AND WALLIS & MANNING  FAMCAFC 14 (10 FEBRUARY 2017) are two recent cases which suggest to family lawyers that the only advice we can confidently give is that the Court’s exercise of discretion is to be unfettered and that outcomes are unpredictable. Based on case law precedents, we can give you some idea of your likely outcomes but we cannot ever be 100% accurate because each case is decided on its own unique set of facts and is subject to the Court’s discretion.
Do I have to resolve my issues via the court?
Yes and No.
Even if you negotiate with the help of your lawyers “an amicable settlement” i.e. rather than initiate or file proceedings in the court for the court to confirm or approve your agreement, there are still court documents that must be completed as follows:
1. An Application for Consent Orders – a lengthy Court form;
2. The Proposed Terms of the Orders.
The court reads these documents then if the agreement made by consent by the parties is just and equitable, typically the Court approves the agreement.
Most people try not adopt a litigious approach to dividing their property and negotiate a settlement with their partner that they then ask their lawyers to formalise. You can negotiate without lawyers or with lawyers. If you are the weaker party financially it is generally in your best interests and that of your children to retain an experienced family lawyer to negotiate on your behalf. The law requires that a settlement be just and equitable between the parties.
The Four-Step Approach taken by the Court
The Four-Step Approach taken by the Court in assessing what is a just and equitable distribution of property and financial assets can be summarised as follows:
1. Identify and value the assets, liabilities and financial resources of the parties, whether owned jointly or separately;
2. Assess each of the parties’ contributions to the asset pool, taking into account both financial and non-financial contributions (as outlined in section 79(4));
3. Consider the impact of any orders to be made with respect to the factors outlined in section 79(4), which also leads to a consideration of the factors outlined in section 75(2) (health, age of parties, care and control of children etc);
4. Ensure that any orders made are just and equitable in the circumstances of the case.
Below is a brief list of the contributions the court will take into account.
Direct Financial contributions
- property brought into relationship
- inheritances, and
Indirect contributions to the acquisition, conservation or improvement of the property may include contributions such as paying the day-to-day expenses related to any property and undertaking family-related tasks that free the other party to earn income to acquire, conserve or improve the property.
- renovations to real property
- unpaid work in a family business, and
- homemaker and carer.
Contributions to the welfare of the family
- performance of work relating to role as homemaker, and
- performance of work relating to role as parent.
Once lawyers are retained, negotiating a settlement takes time and, once agreed, Consent Orders and an Application for Consent Orders are typically filed with the court. These are both lengthy documents which require 100% accuracy in relation to financial matters and children. The reason most people file Consent Orders with the court is that it enables them to obtain a stamp duties exemption for any transfer of the former matrimonial home from one spouse to another as well as ensuring:
- a clean break
- that their partners will not be able to come back ‘for a second bite of the cherry’