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Family Law Property Terminology 102 – The Basics

In our previous blog ‘ Family Law Parenting Terminology 101 – The Basics’ we shared that learning about family law parenting terminology can feel similar to learning a foreign language. It can be confusing and overwhelming. Unfortunately the terminology used in family law property and financial settlement matters isn’t much easier.

There are lots of acronyms and legal jargon and people often feel like they need a linguistics degree or like they need to constantly look up words in a dictionary or thesaurus.At New Way Lawyers our caring team of family lawyers take the time to explain not only all the unfamiliar terminology but also the processes and procedures of the family law system, meaning everything feels less overwhelming.

Many people still however find it useful to have a ‘cheat sheet’ or a reference point to remind them of the meaning of some of the commonly used words. We have therefore put together this helpful summary of commonly used terms in family law property and finance matters.

 

Binding Financial Agreement

A private agreement, under the Family Law Act, that sets out how the parties to a marriage or defacto relationship will distribute their property and finances in the event of separation or divorce. These agreements can be made before, during or after a defacto relationship or marriage. Certain requirements must be met for the agreements to be legally binding – for example the agreement must be in writing, signed by both parties and independent legal advice must have been received by each person prior to signing.

Caveat

A caveat is a formal notice or warning attached to the title of a property that stops the registered owner and other people from dealing with the property.

Conciliation Conference

A conciliation conference is a court ordered mediation between the parties to a property / financial dispute which is facilitated by a Registrar of the Court. The conciliation conference provides an opportunity for the parties to reach agreement and resolve their dispute.

Enforcement Order

A further order made by a Court to make a party comply with a previous order. In addition to enforcing an order, the family courts can also punish the non complying party.

 

 

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Financial Disclosure

The exchange of financial information and documentation between the parties to a property / financial matter to provide evidence of past and future financial circumstances. The financial information and documentation exchanged depends on the individual circumstances of the matter but can include payslips, tax returns, bank statements, superannuation statements, loan documents, credit card statements, financial statements for business etc.

Financial Statement

A prescribed court form setting out details of a parties current income, expenses, assets, liabilities and financial resources. A financial statement must be filed with the Court in property settlement and spousal support matters.

Financial Resources

A future expectation or interest to income, assets or finances, for example distributions under a will or a trust, long service leave entitlements, or a pending personal injury claim.

Forensic Accountant

A specialist accountant who examines and investigates the finances of an individual or a company for possible fraudulent activity or to trace funds or assets.

Property Orders

A legally binding declaration made by the Court regarding the distribution of assets and liabilities between the parties to a marriage or defacto relationship. Property Orders can be made as consent orders, meaning the parties have agreed to the orders and the Court has reviewed and approved them. Alternatively the orders can be made by the Court following a hearing. Property orders can be either interim orders or final orders.

Property Pool

All the assets and liabilities to be distributed and divided between parties to a property dispute.

Property proceedings

A court matter regarding issues and disputes about how the assets and liabilities of the parties to a de facto relationship or marriage are to be divided. The Court adopts a five step process that is used to determine each parties entitlement to property / financial settlement. Briefly the five steps are as follows:

  • (1) Determine whether it is just and equitable to adjust the existing property / financial interests of the parties.
  • (2) Determine the assets and liabilities of the parties (including assets and liabilities in the sole names of the parties, the joint names of the parties of the joint names of one or the parties and a third party).
  • (3) Assess the contributions made to the assets and the relationship by each party. These contributions include initial contributions, financial contributions, non financial contributions and post separation contributions.
  • (4) Assess the future needs of the parties such as their age and state of health, income and earning capacity, care of children of the relationship, length of the relationship and how that has impacted on a party’s earning capacity etc.
  • (5) Assess whether the outcome is fair and just. At the end of this five step process the parties entitlements to property settlement are determined as a % division of available net property pool.

Spousal Maintenance

Spousal maintenance is the payment of financial support by one party to the other party of a marriage or de-facto relationship in the event that they are unable to financially support themselves. Spousal maintenance can be paid as either periodic maintenance on either a weekly, fortnightly or monthly basis, or as a lump sum payment or even by way of payment to third parties, such as payment of rent or mortgage payments.

 

 

Superannuation Information Form

A prescribed court form used in property / financial matters where there are superannuation interests being considered as part of the property settlement or division. The form is issued to the trustee of the superannuation fund and requires the release of information about the superannuation fund to a party or parties.

Superannuation Splitting Order

An Order of the Court to the Trustee of a Superannuation Fund for the split of a membership superannuation interest as part of property settlement.

Valuation

An expert report providing a professional opinion on the value of an asset such as real property, motor vehicles or business interests

 

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