If you have separated from your spouse and have not been able to agree on who gets the house, business, superannuation etc you can ask the Court to decide right? Not always, is what the Courts are now saying.
According to recent cases, the Court will not always agree to decide who gets what property for separated couples.
The cases (Bevan and Bevan  FamCAFC 19, and Stanford and Stanford  247 CLR 108) basically state that the Court will only intervene and make Orders to divide matrimonial property where it is necessary or in the interests of justice to do so.
This means, that if the Court looks at what has happened after separation and decides that no action is necessary, then the Court will leave things alone.
If parties separate and there is long delay before the Court is asked to divide property, there is the chance that the Court will refuse to say who gets what property, especially if the separated couple have had some agreements between them as to how to divide their property.
After being divorced any request for the Court to decide on who gets what property must be made within one (1) year. With the recent cases it appears that any request for the Court to decide on division of property should be made as soon as possible if the separated couple are unable to agree.
Another important issue raised by the recent cases is that if an informal/verbal split of property is agreed by the separated couple, the Court may not agree to intervene or alter the agreement unless it is necessary to do so. The longer the verbal/informal split or agreement has been in place, the more likely it is that the Court will not change the verbal agreement.
In the past lawyers had been able to say with some confidence that unless any agreement by the separated couple is formalised by Court Consent Orders or a Financial Agreement, then it would not be binding.
The effect of the recent cases is that the Court will be more interested in any agreements or actions of the parties after separation, so therefore it is important to very carefully consider, and seek appropriate legal advice, when putting in place financial arrangements or agreeing to who gets what property after marriage/defacto separation.
There are many and various factors that a Court will consider in deciding whether to assist couples to divide their assets. Should you need family law advice or assistance, David Millwater and the family law team at McNamara & Associates will be happy to discuss your matter with you.
To know where you stand, contact McNamara & Associates on (07) 3812 2300.