Proceedings under the FLA for matters relating to property between the parties to marriage may be commenced in state Magistrates’ Courts, the Federal Circuit Court or Family Court (see “Which court can hear matters related to children?” in Parental responsibilities and child support).
Either of the two lower courts can decide to transfer the proceedings, even where the parties are willing for that court to determine the matter.
Since 1 March 2009, the law permits people who have not been married but who have been in a relationship, including people in a same-sex relationship (regarded by the court as a de facto relationship) to apply for and obtain similar relief to that historically available to married people, in relation to the resolution of property and maintenance disputes. The parties need to have been in a relationship for a period of two years (with exceptions) and separated after 1 March 2009. For further information on this topic see Same-sex and de facto couples and families.
Consideration of property matters may involve the following:
1 Section 78 of the FLA gives the court the power to make declarations as to existing title or rights to property between married people, and to make allied orders; for example, sale or partition or possession, to give effect to its decision.
2 The court has the power (s 79) to alter the property interests of a party. It is now not necessary to wait until application for divorce where the parties were married; there is no waiting time for the issue of a property application. If proceedings are started and one party dies, the action against the estate can be continued. The court may also adjourn proceedings taken for property settlement if a significant change in the financial circumstances of one or both of the parties is likely.
3 Although the court is given a lengthy list of matters to be considered in the exercise of its power under section 79, the remedy is discretionary and not limited by ordinary legal rights. The court is required by section 79(4) to take into account the detailed matters outlined in section 75(2) (i.e. the considerations for maintenance) as well as:
athe financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property;
bthe contribution (other than a financial contribution) made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of homemaker or parent;
cthe effect of the proposed order on the earning capacity of either party; and
dany other order made under the FLA affecting a party (s 79(4)).
4 The order for property may be set aside, varied or substituted if:
athere has been a miscarriage of justice by reason of fraud, duress, suppression of evidence or giving of false evidence or any other circumstance;
bcircumstances have arisen since the order was made that make it impractical for the order or part of the order to be carried out;
cthe party has defaulted in carrying out an obligation and in the circumstances it is just and equitable to vary the order;
dthere are circumstances of an exceptional nature relating to the welfare of the child and the applicant will suffer hardship if the order is:
1not varied (s 79A(1))
2all the parties to the proceedings give consent (s 79A(1A)).
5 The court has a duty to determine the financial relations between the parties once and for all if this is possible (s 81).
6 Section 84 provides that an officer of the court may sign documents to give effect to court orders where a party neglects or refuses to comply with an order.
7 Section 85 deals with transactions intended to defeat claims under the Act.
8 Conveyances made under any maintenance agreement, deeds or orders made under part VIII are not liable to stamp duty in any state or territory (s 90).
9 Rights of appeal must be commenced not later than one month after the day when the order is made. Further time may be granted at the discretion of the judge. Legal advice should always be obtained prior to agreeing to any consent order or agreement.
10 When the house is in the name of one party only, the other party may be able to have a caveat placed on the title to protect their interest in the house. A caveat is a legal document giving notice to potential purchasers or mortgagees of the other party’s interests.