Family Court of Western Australia

Dividing Property

There are principles which guide the Court when determining what property orders to make. The Court will:

  • Identify and value the existing assets and liabilities of the parties
  • Consider the contributions of the parties
  • Consider the financial commitments and resources of the parties, and
  • Determine whether the proposed orders are just and equitable.

Note that there is no presumption of a 50:50 property split.

This page outlines these general principles, but for further information seek legal advice and read the self represented litigants handbook.

The law is contained in Family Law Act 1975 (Cth) if you were married and the Family Court Act 1997 (WA) if you were in a de facto relationship. Both acts say very similar things.

Step 1 - Identify and Value

The Court will identify and value the assets, liabilities and financial resources held by the parties as at the time of trial.

Each party is required to file a Financial Statement – Form 13, which provides the Court with initial information on the financial position of each party. The Financial Statement Kit has information on how to complete the statement.

Property can include real estate, furniture, cars, boats, money, businesses and shares, amongst other things. It also includes property the parties have an interest in – for example, property held in joint names, or in a trust.

If you and the other party cannot agree on the value of an item of property, a qualified valuer should value it. The valuer needs to provide an affidavit attaching their valuation report. The judicial officer will normally require evidence of the value of property, and market appraisals cannot usually be used as evidence of value.

The court must also consider any financial resources. This term isn't defined in the family law legislation, and is a general term interpreted widely by the Court. It includes things of actual or potential value which can't currently be treated as property, such as an interest in a trust or deceased estate, or an expectation to receive money from a claim (eg. a personal injury claim). If you are in any doubt about financial resources you should seek legal advice.

Step 2 - Consider Contributions

Once the judicial officer has ascertained the assets, liabilities and financial resources, they must then consider the contributions made up until the time of trial.

The judicial officer will consider the following types of contributions:

  • Direct and indirect financial contributions, including property brought into the relationship; and wages, gifts and inheritances received after the relationship commenced.
  • Non-financial contributions such as work done to improve or maintain property.
  • Contributions to the welfare of the family, including contributions as a homemaker and parent.

No type of contribution is necessarily more important than another type of contribution.

Your affidavit and your witness’s affidavits must provide evidence about the contributions you and the other party have made.

Step 3 - Further adjustment

Having decided what division of assets should be made based on contributions, the judicial officer will decide whether an adjustment should be made.

The judicial officer must consider a variety of matters in deciding whether to make an adjustment. Many of these relate to the future of the parties, such as their income earning capacity and responsibilities for caring for any children.

Your affidavit must address all of the relevant matters, even if you do not propose any adjustment. The relevant matters are set out in the self represented litigants handbook.

Step 4 - Just and Equitable

The Court must ensure that the overall orders are ‘just and equitable’, that is that the orders are fair.

The Judge or Magistrate will then order that the assets be divided and this might have to include selling an asset in order to achieve the division.

Spousal and de facto maintenance

If you cannot meet your reasonable expenses from personal income or assets, there may be an obligation on the other party to pay maintenance. For example, a person may be unable to support himself or herself adequately because:

  • They have responsibility for the care of a child who is under 18 years of age.
  • Their age or state of health prevents them from gaining appropriate employment.

The judicial officer will not consider making an order for spousal maintenance unless you have sought an order for maintenance. If an order is sought, your affidavit evidence must address the factors listed in s 75(2) of the Family Law Act and s 205ZD(3) of the Family Court Act.

See Spousal and de facto maintenance for more information.

Superannuation

If you were married superannuation is an asset and taken into account in Step 1.

If you were in a de facto relationship, superannuation is a financial resource and is taken into account in Step 3.

A superannuation splitting order is:

  • limited to certain types of funds
  • limited to amounts over $5,000
  • only available if parties were married

The Attorney-General’s Department has additional information on superannuation splitting laws for marriage assets, and also information on the de facto property regime.

The family home

You do not lose your right to a share of the house or other property if you leave the house.

If one person gets the house by agreement or court order, the other will still have a right to a fair share of the assets. This may mean that the person who stays in the house buys the other’s share of the house or re-finances the mortgage into their sole name.

You may have a right to a share of the house even if the house is in a third person’s name.


Last updated: 16-Apr-2018

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