Current and Future Circumstances

When the court decides financial proceedings between parties, it must determine the legal and equitable interests of the parties, assess each party’s financial and non-financial contributions to the relationship, and the matters listed under section 79(5) (for married couples) or 90SM(5) (for de facto couples) of the Family Law Act 1975. These include

• The effect of family violence;
• the age of each of the parties;
• the health of each of the parties;
• the income, property and financial resources of each of the parties;
• the physical and mental capacity of each of the parties for appropriate gainful employment;
• The care of any children of the relationship under the age of 18 and the need to protect a party who wishes to continue their role as a parent;
• the responsibilities of each party to support any other person;
• the duration of the relationship and whether it has affected either party’s earning capacity;
• if either party is cohabiting with another person, the financial circumstances of that person; 
• The effect of any material wastage; 
• Any current liabilities and how they were obtained. 
• Eligibility for a pension, allowance or benefit and the rate it is paid. 

The purpose of the court considering the above matters is to ensure each party receives a portion of the assets and liabilities that reflects their contributions made during the relationship and the challenges either party could face after proceedings.

The purpose of s 79(5) or s90SM(5) is not “even up” the financial position of each party, but for the court to carefully determine whether an adjustment of the percentages is needed.

The court has broad discretion in respect to this stage of determining property proceedings. Under s 79(5)(v) or s90SM(5)(w) of the Act, the court is entitled to consider any other factor that may affect the percentage of the assets and liabilities each party receives.

For advice or representation in any legal matter, contact Armstrong Legal.