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The consideration of each ex-couple's future needs in family law matters like divorce is necessary for a just and equitable division of assets. Often, property settlement results in one party or the other party being in an unfair position compared to the other. While factors like income difference and earning capacity can affect a party's future needs, there may be more that can affect it as well.
Property settlement can either go smoothly or not, following the breakdown of a marriage or a de facto relationship. It may involve a lot of lengthy and difficult questions. Moreover, it can involve one or two parties who think they deserve more than the other because of certain factors and conditions.
Either way, we will highlight these conditions and factors to help you have proper knowledge of future needs in family law matters.
Property Settlement and Its Importance to Family Law
Property settlement is an important part of a divorce where an ex-couple divides what they own. Yes, it can get messy at times, especially if the ex-couple's property pool is of high value. Couples who want to protect such a high property value can consider signing a prenuptial agreement with their partner. But couples who may have forgotten about this agreement can instead opt for a postnuptial agreement.
Both agreements can outline which partner gets what. So, it's important to know what you rightfully own and whether you have joint ownership over some things.
The courts may then issue consent orders for parties that reach an agreement on property settlement or parenting arrangements matters.
Consent orders are legally binding orders that follow the terms and conditions that parents agreed to. These agreements include matters like who the child will live with and how the child spends time with each parent.
The Current and Future Circumstances of a Couple
This is an important consideration under future needs in family law matters. The current and future circumstances of a couple can dictate what they will receive after property settlement. Why? During property settlement matters, the family court wants each party in a divorce to receive a just and equitable share.
The court sees to it that each couple has just enough to stay afloat financially. If a person suffers financially because of the divorce, then they can apply for spousal maintenance.
Spousal Maintenance For Separated/Divorced Couples
Spousal maintenance plays a big role in supporting financially dependent parties with their future needs. In detail, a court usually handles spousal maintenance; however, an agreement between parties can also finalise this. Spousal maintenance aims to give appropriate support to former spouses who are financially incapable. Couples can apply for spousal maintenance if they:
- Are separated but still married;
- Were married but divorced for less than 12 months; and
- Were in a de facto relationship
Accordingly, the law requires married or divorced couples to have a duty to financially support each other. Moreover, the law also requires them to maintain reasonable living standards. On the other hand, a de facto partner maintenance can also apply for spousal maintenance as long as couples:
- Lived together for at least 2 years; or
- Lived together as a couple for less than two years with a child
Can Mediation Help With Future Needs in Family Law Matters?
Mediation plays a big role in property settlements, and solicitors can aid in considering each party's future needs in family law matters. It is a cheaper and more effective way to handle family law disputes. The aim of mediation is to help both parties come up with just and fair agreements during their divorce.
A couple failing to reach an agreement will need to file an application for property settlement in the concerned courts. Consequently, courts have the decision in dividing a couple's property after a court hearing.
The Role Of The Court
Sometimes, mediation may not be the best option to resolve divorce arguments and conflicts. So, the court may step in and handle these negotiations and settlements. The court considers what are the available assets and liabilities from the asset pool between former partners. Further, court considerations would involve a couple's financial and non-financial contributions.
The court can determine the entitlement percentages of each partner in the property pool by basing it on the contributions. Future needs in family law matters refer to any needed adjustments in favour of either partner.
Factors That the Court Will Consider Under the Family Law Act
Section 75 (2) of the Family Law Act considers whether each couple has any future needs in family law matters. These are the:
- Age and health condition of each party;
- Income, property or financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
- Circumstances, whether either party has the care or control of a child in the relationship;
- Commitments of each party that are necessary for enabling the party to support themselves and any child or children;
- Responsibilities of either party to support any other person;
- Eligibility of either party for a pension, allowance or other government benefits, including superannuation allowances or benefits;
- Reasonable standard of living;
- Duration of the relationship and the extent to which it has affected the earning capacity of the parties;
- Effect of any order on any creditor's ability to recover debt;
- Need to protect a party who wishes to continue their role as a parent;
- Financial circumstances relating to cohabitation with any other person;
- Any obligations for child support payments child support in the future;
- Terms of any financial agreement which is binding on the parties; and
- Whether it is just and equitable in all the circumstances to make any property settlement orders and, if so, the particular property settlement orders that are proposed
So, if I Want a Fair Property Settlement, What Should I Do?
This is quite difficult to answer since each divorce case is unique. Some couples may reach an agreement about their proposed property settlement division faster than others. While some couples may take longer to agree on property settlement matters, because one or both people are prideful or greedy.
Our best advice is to seek independent legal advice from us at JB Solicitors. Our mediation services at JB Solicitors can help couples decide peacefully on their legal matters. This involves our family lawyers acting as a third party to find the best agreements for disputed partners. Furthermore, we can also draft consent orders for couples who are able to reach their own agreements.
If mediation fails, we can also help represent you in court. We'll ensure that you get a fair property settlement division and know your rights and obligations regarding your children.
Contact us to know more about your future needs in family law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
