SEPARATION: PROPERTY & FINANCIAL DIVISION BETWEEN COUPLES

Alternative dispute resolution

It is a requirement that every person in family law cases must make a genuine effort to resolve the disputes with the other party by participating in some sort of dispute resolutions, unless there is a risk of family violence or the matter is very urgent (e.g. seeking an injunction).

Dispute resolution can come in many forms including:

  • family counselling;
  • negotiation;
  • conciliation; or

If you and your spouse can reach an agreement during dispute resolution, you should record the agreement by filing of a Form 11 application for consent order.

If an agreement cannot be reached, you may have to consider commencing an application relating to property in the Family Court.

Injunction

If you believe your ex-partner is taking steps to dispose family assets or otherwise siphoning money off with the aim to prevent you from receiving your entitlements in the family assets, you may need to apply for an injunction. An injunction is a court order to stop someone from doing something or, in some situations, to make someone doing something.

For property cases, you can obtain an injunction to stop your ex-partner from selling, mortgaging or otherwise dealing with a property. If the property has already been sold or the asset in question is cash, it is possible to obtain an order to ‘freeze’ bank accounts or an order to seize the cash.

In appropriate situations, the Family Court can also make orders and injunctions that affect third parties including for example an order to stop a trustee to deal with superannuation entitlements or an order to prevent a bank from selling a house.

An injunction under the Family Law Act is available to both married and divorced people, as well as to parties in a de facto relationship, including same-sex relationship.

Typically, an injunction application is made on an urgent and ex-parte basis (meaning it is made in the absence of your ex-partner). If the application is ex parte, your ex-partner will not know anything about it until after the orders are made by the Family Court, which is designed to prevent the ex-partner from doing anything that may frustrate your claims while you are waiting for the court to hear your application.

For information about other types of injunctions, please see SEPARATION: CHILDREN.

Search order

In Family Court proceedings, each party to a case has a duty to give full and frank disclosure of all information relevant to the case. In some cases, however, a party may decide to conceal, alter or destroy information that is not favorable to that party.

In situation like this, you may have to consider applying for a search order (also known as Anton Piller Orders) which will allow you or your representatives to enter into the other party’s premises to inspect, remove or make copies of documents or other items which might be relevant to the case.

The Court is generally reluctant to grant a search order because it’s intrusive and sometimes disruptive nature. At the minimum, you will need to satisfy the Court that there are strong reasons your ex-partner will remove, destroy or alter the information and that you will suffer damages if orders are not made.

For obvious reasons, an application for search order is almost always required to be made secretly (by way of ex parte application) and promptly.

Contravention/enforcement

When the Court makes orders (including orders made by consent), they must be followed by the parties. If your ex-partner refuses or fails to follow Court orders without reasonable excuse, it is a contravention of the orders and you may make an application for contravention. An application for contravention informs the Court that the orders are not being followed and upon satisfying of the contraventions, the Court may:

  • put the other person on notice about the contravention;
  • make further orders or change existing orders to ensure they will be followed;
  • impose a fine on the other person;
  • imprison the other person.

Further, you may also seek to enforce the court orders if the obligations are “enforceable”. Enforceable obligations include:

  • an obligation to pay money;
  • an obligation to sign a document;
  • an order entitling a person to the possession of real property;
  • an order entitling a person to the transfer or delivery of personal property.

For an obligation to pay money, the Court may enforce the obligation by making:

  • an order for seizure and sale of real or personal property;
  • an order for the attachment of earnings and debts;
  • an order for sequestration of property; or
  • an order appointing a receiver.

It is to be noted that the Court has the power to imprison a person for failure to comply with an order.

An application for contravention or enforcement may have serious consequences to the other person and legal advice should be sought before an application is made.

Superannuation split

The Family Court can make orders that deal with superannuation interests in the event of a breakdown in a marriage or a de facto relationship.

A superannuation split can be achieved in 3 ways:

  • by entering into a binding financial agreement;
  • by seeking consent orders from the Family Court; or
  • where no agreement can be reached, by determination of the Family Court.

While the superannuation splitting law treats superannuation as a different type of property, the general principles about property division apply when the Court determines how superannuation interests are to be split between the parties. In fact, in most cases superannuation can be considered to be an asset just like any other asset and that it is taken into account as part of the asset pool of the family.

Third party actions

In property cases, usually only the spouses (or the de facto spouses) are parties to the proceedings. However, it is possible to join a third party to the court proceedings if, for example, the Court is satisfied that:

  • an order should be made declaring that an asset legally owned by a third party is in fact owned by one of the spouse;
  • a third party transaction is a sham;
  • a transaction that is likely to defeat an order or an anticipated order should be set aside;
  • the third party is in fact the alter ego or a puppet of one of the parties;
  • an injunction is needed to restrain a third party from taking steps to affect or defeat a spouse’s entitlements;
  • an order is required to direct a third party to assist in carrying out property settlement;
  • the rights of a third party creditor need to be adjusted.

Sometimes a third party may seek to be joined to the proceedings in order to ensure their interests in an asset to the marriage are not defeated.  A common example is that a parent of one of the couples may wish to be joined to the proceedings because the parent has an interest in the matrimonial home which is not reflected in the certificate of title.