Four Steps Involved in Property Division Matters

The preferred approach to making property division orders involves four interrelated steps, as highlighted in the Marriage of Hickey (2003) 30 Fam LR 355 case:

Identification and Valuation of Property and Financial Resources

The court first identifies and values the parties' property, liabilities, and financial resources at the date of the hearing.

Consideration of Financial Contributions

The court then considers the parties' financial contributions, as well as any contribution made in the capacity of homemaker or parent for the welfare of the family.

Assessment of Future Needs

The court assesses the future needs of both parties, considering a range of factors such as age, health, earning capacity, and whether either party has care of the children or receives any pension, allowance, or benefits.

Just and Equitable Findings

Finally, the court considers if the effects of their findings would be just and equitable in all the circumstances of the case.

Considerations for Property Division in Family Law Matters

The High Court provided instructive guidance about what is "just and equitable" in the case of Stanford v Stanford [2012] HCA 52. In this case, the husband and wife had lived together for 30 years, and only separated involuntarily when the wife had to be moved into a facility that could care for her. The property settlement application was made by the wife's daughter as the wife's personal legal representative. The respondent was not the appellant's daughter.

Although the wife had not wished to seek any division in the matrimonial property, the High Court made it clear that as the proceedings were commenced between married individuals and were concerned with marital property, the court would have the jurisdiction to hear such proceedings under section 79.

At the first instance, the magistrates determined a 57.5/42.5 split in favour of the husband, which would result in the husband selling his home. As the wife died before the appeal was finalised, the High Court agreed that the relevant question would be if it would have been "just and equitable" to alter the interests in the property while she was still alive.

The High Court emphasised that as the separation was involuntary and the wife's needs were being met, it would not be just and equitable to make an order to split the split the husband and wife’s interests as it would force the husband to sell his house. In making its decision, the High Court also emphasised that before exercising its discretion under the provision, the courts should first consider if there is a “principled reason for interfering with the existing legal and equitable interests of the parties to the Marriage”.

How Dhillon Legal Can Help

At Dhillon Legal, our experienced family lawyers understand the intricacies of property settlement matters and the importance of seeking legal advice from a qualified professional. We know that property settlement can be a difficult and emotionally draining process, but our team is dedicated to guiding you through the process and achieving the best possible outcome for you.

Our team of family lawyers has extensive experience in handling property settlement matters for clients across Melbourne. We take a proactive approach to understand your unique circumstances and tailor our advice to meet your specific needs. We will work closely with you to ensure that you are fully informed throughout the process and provide you with the support you need during this difficult time.

Contact Us

Contact Dhillon Legal today to speak with one of our experienced family lawyers about your property settlement matter. We offer a range of legal services to clients across Melbourne, including property settlement, divorce, child custody and support, spousal maintenance, and more. Let us help you navigate this challenging time and achieve the best possible outcome for you and your family.