AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
• The first step is to identify and value the property of each of the parties to the marriage or both of them, and to identify their financial resources. • The second step is to assess the contribu - tions made by each party to the accumula - tion, conservation and maintenance of that property. This involves an assessment of the myriad of contributions, direct and indirect, financial and non-financial, as a homemaker and as a parent. Contributions of a home - maker and parent must be given substan - tial and not token weight. While there is no assumption or presumption that contributions are equal, it is often the case – in the absence of any significant initial financial contributions by a party or any major gift or inheritance – that contributions are found by the court to be equal. • The third step is to have regard to the current and future circumstances of each party. This requires a court to have regard to a series of different factors, most particularly whether there is any income earning disparity between the parties to the marriage, any significant capital disparity, and whether one party has the primary care and control of the children of the marriage. • The fourth step requires that any order made for property settlement should be just and equitable. Some General Financial Principles and Guidelines The Australian court will, in general, approach the identification of the asset pool and assess - ment of contributions on a global basis. It is not necessary for there to be any nexus between a particular contribution and a particular asset. The Australian court does not exclude from the pool of property available for division assets that
a party brought into the relationship at the start, nor does it exclude inherited or gifted assets. However, a party may receive a greater contri - butions weighting in their favour, because they were responsible for the introduction of assets of that nature or were the recipient of the inherit - ance/gift in question. The balance sheet of the property of the parties is determined not as at the date of separation, but as at the date of settlement or final trial. That means that where there is a delay between final separation and trial/settlement, assets acquired and income earned even after separation will form part of the assets available for division under Australian law. Full and Frank Disclosure There is an absolute obligation on parties to the marriage to make full and frank disclosure of all matters relevant to the case. That disclosure obli - gation is imposed even prior to the commence - ment of the proceedings. As part of pre-action procedures, parties must make disclosure. The intention is to enable parties to resolve their dispute without court intervention, cognisant of the need to fully appreciate the financial circum - stances of the other spouse before they make any interim or final settlement. If a party fails voluntarily to make disclosure, then the court can make orders directed against that party requiring that they do so. There are also mechanisms available under the Family Law Act and the court rules for various mechanisms for disclosure whether against a party to the mar - riage or against third parties. These include but are not limited to:
• subpoenas to produce documents; • subpoenas to give oral evidence;
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