In deciding property Orders where parties can not agree the Court will:
1. Identify matrimnial assets:
a. the actual physical assets (eg house, money, shares)
b. the value of those assets
2. Identify the contributions
a. financial contributions (eg payment of bills and mortgage)
b. non-financial contributions (eg caring for children whille not working)
3. Identify any future needs of the parties (eg ongoing medical needs of the spouse or the children)
4.and having considered the above provide orders for distribution of the "pool" of assets so as to be fair (equitable) to both parties.
There is often conflict and dissagreement in all or some of the above matters. It is very advisable that you seek advice on a range of likely outcomes of the Court, even if you are seeking to resolve things amicably by agreement. In any event such an agreement, to be enforceable, needs such advice by a lawyer for each party independently so you should seek the advice early.
Where there is no conflict or otherwise the matter can be agreed upon then Court can be avoided by the parties entering into a Binding Financial Agreement. Each party must obtain independent advice on the benefits and dissadvantages of that agreement by a Solicitor who will need to sign a declaration of having given that advice. Much care needs to be taken to ensure that a Binding Financial Agreement is prepared properly. We have acted in appeals where parties have made application and been successful in setting aside binding financial agreements.
Alternatively Consent Orders may be prepared for the Court if the parties agree at any stage of Court proceedings. The Court itself will have parties attempt to resolve their dispute through a Conciliation which is conducted by a Registrar of the Court. Often matters settle at or shortly after these Conciliations where all parties should be working hard to avoid costly litigation.
However, if parties can not agree a final hearing will be required. We appear at final hearings and our results are excellent. We recently achieved 85% for a wife in a Family Law property hearing. This was an outstanding result where the husband had failed to disclose assets and who made the conduct of the hearing much more difficult (and expensive) than it should have been by virtue of his refusal to disclose. It was not a case for the "faint hearted" and it required extensive strategy and subpoenas to be issued and analysed to provide to the Court evidence which permitted it to make such an award. However, the result was a direct result of the effort and skill put into the case.