Property, Property Orders and Property Claims

For the property settlement, all property owned by one or both spouses will be considered as being joint matrimonial property. That is, all property owned by the parties whether individually or in joint names is taken into account by the Family Court. Any property in company names or trusts will be treated as property when it appears that a spouse enjoys the benefits of ownership of the company or trust property.

Property includes:

• property each party owned before the marriage;
• property purchased during the marriage, including real estate, cars, insurance policies, bank moneys, shares, boats, furniture and so on;
• gifts and inheritances received by each party;
• assets and good will that a party has built up in a business;
• compensation awards and lottery winnings;
• redundancy packages.

These matters will be considered as the financial resources of the party when the Court assesses their future needs.

Property which cannot be dealt with by the Court includes

• future expectations under wills or trusts;
• long service leave entitlements (unless those entitlements have been received or are about to be received);
• actions for personal injury damages (unless the other party nursed the injured spouse through their injuries).

Superannuation

Superannuation is also considered as property and can now divided in a property order. It is wise to see a lawyer who is an expert in Family Law about this.

Property Orders

Property orders are considered to be final orders and can generally only be changed by the consent of the parties or if there has been a miscarriage of justice by reason of fraud, duress, false evidence, suppression of evidence or other circumstances (s79A, Family Law Act). Property orders can now also be changed if it is impracticable for the orders to be carried out, if one party has defaulted in carrying out the terms of the order or if circumstances concerning the children’s welfare have changed and this is causing hardship to the children or the party looking after them. It is not usually easy to prove a miscarriage of justice or impracticability.

The Effect of Death on Property Claims

When one party dies before the other party has instituted property proceedings, no property claim may be brought under the Family Law Act. The survivor may be able to claim a legal or equitable interest in property or assets of the deceased, or make a claim for provision from the deceased estate under the Testators Family Maintenance Act (Tas) 1912.

When a property application has been lodged but one party dies before the matter is completed, the proceedings may be continued by or against the deceased legal personal representative (i.e. the person looking after the estate). If the Court decides that property orders are still appropriate, these orders are enforceable against the deceased’s estate (s79(8), Family Law Act).

If property proceedings are completed, but one party dies before the orders are carried out, the orders may be enforced against the deceased ‘s estate.