The case of Stanford v Stanford [2012] HCA 52 (‘Stanford’) is a landmark decision in Australian family law that clarified the principles that should be applied when determining the division of property between separating spouses.
The High Court in Stanford ultimately agreed that the following principles should be applied when determining the division of property between parties after it is determined that it is appropriate for an adjustment to occur:
Property pool: Identify the assets, liabilities and financial resources of the parties to determine the property pool available for distribution.
Contributions: Assess the contributions of each party to the acquisition, conservation, and improvement of the assets.
Future needs: Consider the future needs of each party, including their age, health, income, earning capacity and any parenting arrangements that may be relevant.
Justice and Equity: Ensure that any proposed order is just and equitable.
The High Court emphasised that each case must be decided on its individual facts, with the primary focus being the achievement of a just and equitable outcome for both parties.
The entitlement of each party to the property pool will depend on the specific circumstances of the case. Generally, the aim is to divide the assets and liabilities in a way that is just and equitable to both parties. This may involve dividing the assets equally, or in a way that reflects the contributions and future needs made by each party to the marriage or de facto relationship.
It's important to note that each property settlement case is unique, and there is no one-size-fits-all solution. If you are going through a separation and are unsure about your entitlements, it's important to seek advice from a family law professional.
What if we can agree on how we divide the property pool?
After you have obtained advice in relation to your likely range of entitlements, you may be able to reach an agreement with your former partner without the need for Court intervention.
In those circumstances, there are two ways to formalise the agreement reached between you both:
Consent orders: This is a process where both parties agree on the terms of the property settlement and apply to the court to have the agreement made into formal court orders. This involves completing and filing certain forms, paying a filing fee, and waiting for the court to approve the orders. Once the orders are made, they are legally binding and enforceable.
Binding financial agreement: This is a private agreement between the parties that sets out the terms of the property settlement. It must be signed by both parties and their lawyers, and each party must receive independent legal advice before signing. Financial agreements are not filed with the court and are not subject to court approval. However, they must comply with certain legal requirements to be enforceable.
To decide which option is best for you, it's important to seek legal advice from a family law professional. They can help you understand the advantages and disadvantages of each option and guide you through the process.
To obtain advice specific to your circumstances, please contact our office to schedule a complementary consultation with a solicitor from our family law team on (07) 5576 9999.
Article by Alexandra Coyle. Family Lawyer at Robbins Watson Solicitors.
Phone: (07) 5576 9999
Email: AlexandraCoyle@robbinswatson.com.au