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Property Settlement And Maintenance

Property Settlement And Maintenance

Part VIII of the Family Law Act deals with property, spousal maintenance and maintenance agreements. The Court in considering what order if any should be made in property settlement proceedings takes into account the financial contribution made directly or indirectly by either party to the acquisition, conservation or improvement of any property of the parties and the contribution (other than a financial contribution) made directly or indirectly by a party to the acquisition, conservation and improvement of any property of the parties and the contribution made by either party to the welfare of the family constituted by the parties and any children including any contribution made in the capacity of homemaker or parent.
The court further takes into account factors that are mainly prospective in nature. These include the age and state of health of the parties, the income, property and financial resources of the parties and the physical and mental capacity of each of them for appropriate gainful employment. Whether either party has the care of the child of the marriage who is under 18 and the commitments of either party to support themselves or a child or another person they have a duty to maintain are relevant factors. The issue of whether either party is eligible for a pension or benefit under any superannuation fund or scheme is relevant in property proceedings. The court should take into account the needs of the parties to have a standard of living that in all the circumstances is reasonable, whether the duration of the marriage has affected the earning capacity of either party and the importance to protect a party who wishes to continue a role as a parent. If either party is now cohabiting with another person, the financial circumstances relating to the cohabitation is relevant. The amount of child support a party has provided or is to provide is relevant . The court can also bring into account other conduct of the parties which has an economic significance on the parties dealing with each other or the property in dispute.

The task the court undertakes is not a simple accounting or arithmetical task. The court exercises a discretion according to considerations of justice and equity. It is not a process of equalising the assets and financial resources of the parties.
If a party is unable to support themselves adequately because of having the care and control of a child or by reason of age or physical or mental incapacity for gainful employment or any other adequate reason the other party to the extent that other party is reasonably able to do so is liable to maintain the party. A court may make such orders as it considers proper for the provision of maintenance taking into account the age and state of health of each of the parties, the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment. The court must also consider whether either party has the care or control of a child of the marriage who has not attained the age of 18 years and the commitments of each of the parties to support themselves and any child or other person the party has a duty to maintain. The court must also consider the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party and the duration and the extent to which the marriage has affected the earning capacity of the party whose maintenance is under consideration. The must also consider the need to protect a party who wishes to continue a role as a parent and whether either party is cohabiting with another person and if so the financial circumstances relating to the cohabitation. The court must also consider the terms of any order or proposal for property settlement and the amount of child support that has been provided or is to be provided and any other factor or circumstances which in the opinion of the court the justice of the case requires to be taken into account.


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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.

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