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Property Orders

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Peter Magee

Can the Court make Property Orders if I am not separated?

It is quite obvious that a person may initiate proceedings in the Family Court or Federal Circuit Court (Federal Magistrates Court) for final property settlement between two parties who have existed in a de facto or marital relationship and have now separated.

What is not so obvious is that the Court has jurisdiction to make Property Orders in circumstances where parties have not yet separated. There is no requirement under the legislation that in order to make property orders the parties’ relationship must have broken down.

Obviously, a Court will hesitate in making Orders where parties have not yet separated. Property Orders are Final Orders, and if the marriage is to continue for an extended period of time it is difficult to see how making Final Orders at such a stage would be a “just and equitable” solution. The Court cannot predict what property the parties may obtain following Final Orders being made, or even whether the parties have more children.

Initially, the Court adopted a two step process in deciding whether to intervene in proceedings. The first was to assess whether it should exercise its jurisdiction. The second was whether, jurisdiction being accepted, it was just an equitable to make a determination.

It was subsequently decided that the first step was not correct and that the Court is not permitted to simply refuse exercise jurisdiction as a preliminary step. It must hear the case and decide whether making a final determinate is “just and equitable”.

There are a number of cases that have been heard by the Court, resulting in property Orders where the parties have not separated. However, it is common in these cases that the parties have physically separated, although not emotionally. The main reason for the physical separation is age or infirmity. The cases are commonly a result of one party being of advanced age, or with advanced health concerns (such as dementia). The Court in those cases has sought to determine whether there was any benefit to any either party in making property Orders at that stage of the parties’ lives, and if there was a benefit to a party doing so, whether a determination of final property settlement may be determined to be "just an equitable".

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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