Property and Spousal maintenance on Separation
Most couple relationships involve a degree of shared property. Upon separation, you and your partner will need to consider how to separate your property.
In ordinary circumstances, de facto couples will have 24 months from the date of separation to finalise their property matters. Married couples will have 12 months from the date of their divorce. If your circumstances fall outside of these time limitations, you should seek legal advice about whether there are any other options available to you.
Naturally, parties can find it difficult to decide how they should separate their property. What property should be shared? What is a fair share for all concerned? How do you implement any agreement?
If you cannot agree, parties to a de facto relationship or a marriage can apply to the Family Court to have the court decide the matter. The Court generally considers a matter in this way:
- First, what property can be considered (eg are trusts and companies included?);
- Second, is there any need to alter the parties’ legal interests in their property?
- Third, what contributions have the parties made to the property and the family during the relationship;
- Fourth, what are the parties’ respective future needs; and
- Finally, what would be a just and equitable division of property.
A good place to start is by listing all of your assets and liabilities and trying to agree on a value. This includes any property or debt that has been acquired by either of the parties after separation or which was brought into the relationship. In most circumstances, the parties should consider that “everything is in the pot”.
You and your partner may not agree on the value of a particular item of property. An agreed value must be realistic and reflective of an asset’s current worth. In the event of a disagreement, parties can obtain a professional valuation undertaken by someone they both agree on.
Sometimes it is difficult to decide if something is property; valuations can also be difficult for some items. It may be wise to seek legal and/or financial advice if any of the following items exist in your asset pool:
- A company;
- A family trust;
- A business;
- A self-managed superannuation fund;
- Collectibles (eg. Art, wine, jewels, etc);
- Property overseas.
Parties should always be frank and honest with one another about the assets they have; a fair agreement requires that each party know the true state of affairs. It may be prudent to share current bank statements and tax returns to show the value of the funds you own and to disclose accurately your income. If you end up in court, any misrepresentation of assets or financial matters is a serious matter.
To help with listing your Asset Pool, you can download a copy of our Assets and Liabilities table here.
Is there a need to alter the parties’ property interests?
In some unusual cases, it may not be fair to make any adjustment of property. These are unusual cases where, for example, the couple separated, set up an informal arrangement, and then carried on relying on that arrangement. In such a case, a court may later find that in the circumstances it is no longer fair to alter the property arrangements.
Once the asset pool has been ascertained, you will need to consider how the pool is to be divided. A Court will generally divide your assets on a percentage-basis; this is one way to think about division of property, but if you reach agreement based on other considerations that is fine too.
The Court will consider the contributions that each party has made in the relationship. Contributions include:
- Initial contributions: the value of property brought into the relationship by the parties. The court may then consider how those initial contributions relate to the property held at the time of trial. However, often the court will find that the value of initial contributions is offset by other later contributions, so that in long relationships initial contributions may not be given a lot of weight;
- Financial contributions during cohabitation to the time of trial: the value of direct and indirect financial contributions (such as income) that the parties made during the relationship and to the time of trial. This includes inheritances of property and receipt of large gifts;
- Non-Financial contributions: the direct and indirect efforts of either party in obtaining and maintaining a property (things like gardening, renovations and daily maintenance) during cohabitation to the time of trial. Indirect non-financial contributions also include things like caring for children so the other party can go out to work; and
- Domestic contributions: the efforts of either party in caring for a family and running a household. This includes raising children and performing household chores.
The court will assess the weight of the overall contributions by each party. Domestic violence and wasting of assets can also affect the adjustment of an asset pool. If you require specific information on your own circumstances, seek legal advice.
A court will then consider whether a division based on contributions should be adjusted because of the parties’ respective future needs. The court must consider the following in assessing whether some adjustment is required:
- A party having majority care of a child or children of the relationship, or protecting their role as primary carer of a child;
- A party having less of an earning potential than the other party, or needing to undertake education or training to improve their earning capacity;
- A parties’ financial resources, including superannuation;
- A party’s age;
- A party’s health status;
- A party’s responsibility to care for and support a dependant.
The Court may also take into account any other relevant circumstance that could affect a party’s income or lifestyle post-separation.
Traditionally, a significant adjustment to the division of assets may be made where one party is taking majority care of a child, has significantly less earning potential compared to the other party and/or where one party suffers a physical or mental illness that will affect their ability to earn an income.
If you require specific information on your own circumstances, seek legal advice.
A Just and Equitable Division
The final step for a court is to determine what a just and equitable division of property between the parties is. Once the parties, or the Court, have deciphered a division based on percentages, the asset pool can then be divided accordingly.
If you require specific information about your own circumstances, seek legal advice.
In addition to a division of assets, you may be entitled to spousal maintenance payments. A party to a marriage or de facto relationship may be ordered to maintain the other party if they are unable to support themselves because:
- They have care and control of a child under the age of 18;
- They are unable to get appropriate, gainful employment because of their age or physical or mental capacity; and/or
- Despite having employment they are not able to meet their reasonable needs.
If you are considering asking your former partner to pay you spousal maintenance, the payment needs to be:
- An amount that the other party can reasonably afford; and
- At most, the amount you need to be able to reasonably support yourself and only for so long as you need them
If you remarry or commence a new de facto relationship, then you are no longer entitled to spousal maintenance. Spousal maintenance payments are not very common because often, after paying child support, a parent has no capacity to pay anything further to their former spouse. If you require information about a spousal maintenance payment, seek legal advice.
For information on how to finalise your financial matters, see our Commencing an Application and Finalising an Agreement tab above.
There may be some circumstances where you need to protect an item of property until you have sorted out your financial arrangements with your former spouse. This can be where:
- A house or other property is in the other party’s name and they might sell or mortgage it without your consent;
- A bank account or other investment is controlled by the other party;
- A family business is controlled by one party.
In those circumstances, there are ways you can protect your property. Remember, “everything is in the pot”. If one party wants to keep an item of property out of the asset pool, generally it can’t be done.
If you need to protect your interest in a house or land, you can apply at Landgate for a caveat to be placed on the property. You may be eligible to apply for a caveat if you have made financial or non-financial contributions to the property, or if the property is part of a de facto or matrimonial asset pool.
A caveat will only prevent the other party from selling the property without your consent; it is not proof of you having any interest in the property. A caveat can be removed if the owner of the property makes an application for its removal. If you object to a caveat being removed, you will have to file an objection. Objections can lead to proceedings in the Supreme Court of Western Australia.
To lodge a caveat, you must fill out a ‘Form C1’. You can download a copy of the Form here. You will need a copy of the Certificate of Title for the property. If you do not have a copy of the Certificate available, contact Landgate on 9273 7373.
You may need to see a lawyer to help you fill out the caveat form. You must file your caveat at any of Landgate’s lodgement offices or by post. A caveat lodgement fee will apply. For information on lodgement locations and applicable fees, contact Landgate on 9273 7373.
For a complete guide on completing Landgate Caveats, download their How-To-Guide here. If you require any assistance in drafting or lodging a Caveat, contact Landgate directly or seek legal advice.
If you believe that your former partner will dispose of any item of property without your consent, contrary to an agreement you have already made, or before a proper property separation has occurred, you can seek an injunction in the Family Court of Western Australia. An injunction is an Order of the Court that stops or prevents a person from doing something. In this case, you will be seeking an injunction to prevent the other party from disposing of an asset in the de facto or matrimonial asset pool.
You make an application for an Injunction with a Form 1 Initiating Application in the Family Court of Western Australia. You will have to seek Interim Orders as well as Final Orders if you wish for the Injunction to be made urgently.
For steps on completing an Initiating Application, follow our Procedure link above. You can also contact the Family Court of Western Australia on 9224 8222. It may be advisable to see a lawyer for assistance in seeking an injunction.
Financial Abuse or Control
A form of family violence is to exert control over a person’s finances or to purposefully damage an item of property belonging to, or in the presence of, a family member.
If your former partner is trying to control you by threatening to damage or dispose of property that you own or have an interest in, then you may be a victim of family violence. Your former partner’s behaviour may also constitute criminal conduct and you may wish to consider contacting the police.
For more information about financial control or abuse, follow our Family Violence link above.
Financial Hardship after Separation
Upon separation, your former partner may have taken some steps which limit your access to financial resources, like bank account access, housing, transportation or lines of credit. If you are in these circumstances, you may be struggling financially. You may also be a victim of family violence (financial control is a form of family violence).
To regain immediate access to your financial resources, you can make an urgent application in the Family Court of Western Australia. You do this by filing a Form 1 Initiating Application, and seeking urgent Interim and Final Orders. For more information on how to make this application, see our Procedure link above.
You will need to show that you require access to that financial resource in order to adequately support yourself and any children you may have. You will also need to show that this financial resource has been withheld from you.
If you need any assistance in drafting your application, or in appearing at the Family Court of Western Australia, contact the Court on 9224 8222 or seek legal advice.
You should also consider whether you are entitled to child support if you have care of a child.
Community Legal Services
You may require legal representation, however may not be able to afford it. There are a number of services available to the public to assist you in getting legal advice and representation.
Legal Aid is Western Australia’s public legal service. If you meet their specifications, they can provide you with a lawyer to assist in your family or criminal law matter. Legal Aid has offices in the Perth metropolitan area, as well as regional centres throughout Western Australia. Contact Legal Aid on 1300 650 579.
Law Access is a pro bono referral service managed by the Law Society of WA. They deal with public interest and non-public interest matters, across a wide range of practise areas. For further information, contact the Law Society on (08) 9324 8600 or visit www.lawaccess.net.au.
The Community Legal Centres Association can put you in touch with a local Community Legal Centre. Community Legal Centres can provide you with legal advice and, in certain circumstances, legal representation at Court as well. Contact the Community Legal Centres Association on (08) 9221 9322 or visit www.communitylaw.net.
The Sussex Street Community Law Service can provide short advice sessions for your family law matter. Contact the Sussex Street Community Law Service on (08) 6253 9500 or visit www.sscls.asn.au.
For women, the Women’s Law Centre can assist in a range of family law matters, including property matters, children’s matters, divorce and family violence. Contact the Women’s Law Centre on 1800 625 122 or visit www.wlcwa.org.au.
For those in the Aboriginal community, you can contact the Aboriginal Family Law Service on 1800 469 246 or visit their website at www.afls.org.au.
For those in the Northern Suburbs, you can contact the Northern Suburbs Community Legal Centre on (08) 9301 4413 (Joondalup) or (08) 9440 1663 (Mirrabooka), or visit www.nsclegal.org.au.
For those in the South-Eastern Suburbs, you can contact the Gosnells Community Legal Centre. They can assist with family law, mediation and financial counselling. You can also utilise their services through the Armadale Community Legal Service. Contact (08) 9398 1455 or visit www.gosclc.com.au.
For those in the Peel region, contact the SCALES Community Legal Clinic in Rockingham. SCALES is a community legal centre, run in association with Murdoch University. They can assist in a range of legal matters, including family law. Contact SCALES on (08) 9550 0400.