Sometimes it is difficult to negotiate the division of relationship property with your ex-partner or spouse.  In these occasions where agreement cannot be reached, the option of applying to the Family Court for a division of relationship property becomes important.

A person can apply to divide relationship property through the Family Court.  This can sometimes be a time consuming and costly exercise but it does provide certainty of division of relationship property. The steps and events you will find when applying to the Court to divide relationship property are covered below.

1. Upon taking legal advice and deciding that the right option for your dispute is to apply for division of relationship property, 4 documents will be drafted by your lawyer to start the process.  These documents are:

  • An application for division of relationship property;
  • A Narrative Affidavit;
  • Affidavit of Assets and Liabilities; and
  • Information Sheet.

The application for division of relationship property is a very simple document and simply outlines your intention to divide relationship property. 

The Affidavit of Assets and Liabilities is a values-based description of your  assets and liabilities (debts) owned at the date of separation and as at the date that you signed the Affidavit.

A Narrative Affidavit essentially expands on your Affidavit of Assets and Liabilities and tells a story as to how you accrued your assets and liabilities and what has happened with those assets and liabilities since separation.  A Narrative Affidavit can also set out what you want to achieve out of the division.

The Information Sheet is a simple information sheet outlining the information that the Court needs to be able to get in touch with you and your lawyer throughout the process.  It provides the Court with information to other application orders that may have already been in Family Court between the parties.

2. Once these documents are filed, you get a “service copy” back from the Court.  This service copy needs to be served on your ex-spouse or partner and then they will have the opportunity to file their documentation.  They will need to file a Narrative Affidavit and an Affidavit of Assets and Liabilities, along with a Notice of Defence.

3. Once your ex-spouse or partner’s defence and affidavits have been filed, the Court will set a Judicial Conference to make further administrative directions.  Sometimes the person who applied for a division of relationship property will want a right of response to their ex-spouse or partner’s evidence. There are likely to also be further directions from the Court for the parties to file any further evidence as to values and status of relationship property. 

4. Following the Judicial Conference, the matter will be adjourned to either a further review or Judicial Conference, a Settlement Conference, or a Hearing. 

A Settlement Conference is a Judge-led mediation.  In this settlement conference, a Judge, as a mediator, tries to encourage the parties to reach an agreement to divide property.  However if the parties do not reach an agreement, no order for division will be made. 

Settlement Conferences can sometimes reduce the issues that need to be decided by the Court at the hearing and can record a part settlement.  Before the Settlement Conference, your lawyer is also likely to be required to file a Memorandum setting out what settlement you are seeking to achieve and the outcome of the negotiations to date. 

5. If a Settlement Conference cannot resolve matters between yourself and your ex-spouse or partner, a Judge will adjourn proceedings to a pre-hearing conference. 

At this pre-hearing conference your lawyer will have filed the Memorandum outlining the witnesses required for the hearing, the expected length of the hearing, the issues that the Court needs to decide, and your position regarding those issues.  After a pre-hearing conference the Court will then set the matter down for the hearing.

6. Before the hearing, a bundle of documents will be filed outlining all the evidence that has been filed by both parties in the Court. 

At the hearing, both parties each take turns to ask questions through their lawyer of the other party and answer questions put to them by the other party’s lawyer. Once this evidence has been completed, the lawyers will often be invited to submit to the Court what their client’s position is regarding division and the reasons for that. 

A Judge will then consider both submissions and all of the evidence that has put before them and will make a decision.  Most decisions are usually reserved, which means that the Judge will make a decision at a later date.

7. Once a decision is reached, an Order for division is made, and it is generally final.  Any Order for division can only be appealed within 20 working days of a decision being released to the parties and only if the Judge has made mistakes in either the application of the facts or the application of the law.  Appeals are rare and mostly unsuccessful.

Once an Order has been made, the property will be divided as per the Order and the matter will come to an end.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.