Proceedings under the FL A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. for matters relating to the property of a married couple can begin in the Magistrates’ An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate., the Federal Circuit Court, or the Family Court (see ‘Which court can hear matters related to children?’ in Chapter 4.2: Parental responsibilities and child support). Either the Magistrates’ Court or the Federal Circuit Court can decide to transfer the proceedings to the Family Court, even where the parties are willing for that court to determine the matter.
Since 1 March 2009, the law permits people who have not been married but who have been in a relationship (including people in a same-sex relationship, which is regarded by the court as a de facto relationship) to apply for and obtain similar relief to that historically available to married people, in relation to the resolution of property and Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. disputes. The parties need to have been in a relationship for two years (with exceptions) and separated after 1 March 2009. For more information on this topic see Chapter 4.3: Same-sex and de facto couples and families.
Something of value, such as money, given by one person to another person as part of a contract. of property matters may involve:
1 Section 78 of the FL Act gives the court the power to make declarations about existing land titles or rights to property owned by the married people, and to make allied orders (e.g. order the sale or partition or (1) Having control over property. Possession is not the same as ownership. For example, a bicycle you have borrowed from a friend is in your possession but you do not own it. (2) Having illegal drugs on your person or property. of property) to give effect to its decision.
2 The court has the power (s 79) to alter the property interests of a A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses.. It is now not necessary to wait until application for The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi. where the parties were married; there is no waiting time for the issue of a property application. If proceedings are started and one party dies, the action against the All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. can be continued. The court may also To postpone a court case, to move the hearing to another time or another day. Also referred to as ‘standing over’, as in ‘standing the matter over’ or ‘standing down’. If a case is adjourned indefinitely it can only be brought back if one of the parties applies to the court. This was formerly called adjournment sine die. proceedings taken for property settlement if a significant change in the financial circumstances of one or both of the parties is likely.
3 Although the court is given a lengthy list of matters to be considered in the exercise of its power under section 79, the remedy is discretionary and not limited by ordinary legal rights. The court is required by section 79(4) to take into account the detailed matters outlined in section 75(2) (i.e. the considerations for maintenance) as well as:
- the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property;
- the contribution (other than a financial contribution) made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. of homemaker or parent;
- the effect of the proposed order on the earning capacity of either party; and
- any other order made under the FL Act affecting a party (s 79(4)).
4 The order for property may be set aside, varied or substituted if:
- there has been a miscarriage of justice by reason of An intentionally dishonest act, or lack of action, done to deceive someone and bring some advantage over those who have been deceived., Forcing someone to do something they do not want to do. An agreement signed under duress will be invalid., suppression of Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. or giving of false evidence or any other circumstance;
- circumstances have arisen since the order was made that make it impractical for the order or part of the order to be carried out;
- the party has defaulted in carrying out an obligation and in the circumstances it is just and equitable to vary the order;
- there are circumstances of an exceptional nature relating to the welfare of the child and the applicant A document that sets out what a person wants to happen to their money and other property after they die. suffer hardship if the order is:
- not varied (s 79A(1)); or
- all the parties to the proceedings give To agree to something being done, to approve an action or arrangement. See also informed consent. (s 79A(1A)).
5 The court has a duty to determine the financial relations between the parties once and for all if this is possible (s 81).
6 Under section 84, an officer of the court may sign documents to give effect to court orders where a party neglects or refuses to comply with an order.
7 Section 85 deals with transactions intended to defeat claims under the Act.
8 Conveyances made under any maintenance agreement, deeds/orders made under Part VIII are not liable to A state tax on the transfer of ownership of property such as land, or on leases. in Australia (s 90).
9 Rights of The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. must be commenced not later than one month after the day when the order is made. Further time may be granted at the Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. of the judge. Legal advice should always be obtained prior to agreeing to any consent order or agreement.
10 When the house is in the name of one party only, the other party may be able to have a (1) A warning or notice – for example, to a buyer to thoroughly check a product before buying it (see caveat emptor). (2) A notice filed with Land Victoria warning anyone who searches the land title that someone claims ownership or some other right in the land. placed on the title to protect their interest in the house. A caveat is a legal document giving notice to potential purchasers or mortgagees of the other party’s interests.