Property

The team at Simonidis Shoebridge Lawyers are experienced in all aspects of family law property matters.  We recognise that every case is different, and that it is often the subtle differences and intricacies upon which a case can turn.  Our attention to detail ensures that these subtleties are explored in full.

 

We are proud of the fact that we are able to settle the vast majority of our cases in an amicable and efficient manner and whilst we will always strive to mediate and settle matters our team are all skilled advocates who are capable of effectively presenting and arguing a case in Court.  

 

When advising clients in relation to property proceedings, we adopt the same process as the Court would if it were asked to make a determination.  Broadly speaking, when determining how to effect a property adjustment, the Court follows a four step process:

  1. It values the net assets of the parties at the date of any hearing (less liabilities).  This is often referred to as the ‘property pool’.  This ‘property pool’ includes items such as superannuation interests, and any interests held in companies or trusts.
  2. Once the ‘property pool’ has been established, the Courts will look at the financial and non-financial contributions of each of the parties.  Section 79 of the Family Law Act 1975 outlines the factors the courts consider. 
     
    These contributions can be direct/indirect financial contributions, direct/indirect non-financial contributions and contributions made by a party to the welfare of the family, commonly referred to as homemaker contributions. 
     
    The Court also considers the contributions made at the commencement of cohabitation, during the parties’ cohabitation and marriage and those contributions made after separation up until the date of any decision.
  3. Once the Court have determined the financial and non-financial contributions of the parties to the acquisition and preservation of the property, it then considers whether it should adjust the parties’ respective entitlements by considering a wide range of various matters. 
     
    The matters that the Court considers are listed in section 75(2) of the Family Law Act 1975, and are commonly referred to as ‘adjusting factors’.  Adjusting factors include things such as the parties:
     
    (a)       Age;
    (b)       Health;
    (c)       Income (and income earning potential);
    (d)       Ability to work;
    (e)       Care of a child/children;
    (f)        Responsibility for the care of other persons;
    (g)       Entitlement to any government benefits; and
    (h)       Standard of living.
     
    The weight and importance the Court place on each of these factors is different in every case.
     
    The size of the property pool can give an indication as to the likely size of any adjustment to be made pursuant to section 75(2) factors.  The adjustment to be made pursuant to the section 75(2) factors would be vastly different in a property pool where the net assets were $1,000,000, in comparison to a matter with a property pool of $50,000.  The Court does not have a set percentage for each adjustment factor, rather it looks at the available property in the property pool and then determines an appropriate level of financial remuneration for the Section 75(2) factor, and applies a percentage factor to reflect the adjustment. 
  4.  Upon the conclusion of an examination of all of these factors, the Court will determine what it considers to be a ‘fair and equitable’ adjustment of the property interests of the parties.  That is, it will determine what percentage of the total each party should receive.  In deciding what division to make, the Court has a very wide discretion.  Whilst it is impossible to predict exactly how the Court will exercise this discretion, it is possible to determine the range of orders likely to be made.  

Our team are experienced in dealing with:

  • Undertaking negotiations and mediation with a view to settling a matter,
  • Preparation and settling of consent orders,
  • Advising as to the likely property adjustment ‘range’ following the breakdown of a relationship,
  • The impact of a property adjustment or Court Order on any family businesses or trusts, and minimising this impact,
  • Superannuation, and superannuation splitting provisions,
  • Property transfers pursuant to Court Orders.
     


Our firm has an extensive network of forensic accountants, tax specialists, and financial planning specialists who are able to offer advice as to the likely effect of various property adjustment scenarios from a taxation, and financial planning perspective.  This ensures that our client’s are provided with the ‘complete picture’ when we advise them.
 
Alternatively, we understand that many people have their own accountants and financial planners and we pride ourselves on being able to work collaboratively with these individuals so as to optimise your outcome.

 

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