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VIC Should Division of Property be Under Family Law?

Discussion in 'Family Law Forum' started by yuko, 7 September 2016.

  1. yuko

    yuko Active Member

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    I just wonder, which order is given more priority? Family law or Property law?

    According to family law, the asset and property need to be divided with the principles. However, in property law, in cases of separation, the value, including the financial contribution to the property, should be divided equally.

    After the family law property settlement, do we still need to bringing the 'property settlement' issue or inequity to the magistrates court to challenge under property law?

    In our case, both the party moved out of the family home and there was no need for property settlement at that time. Is it family law that oversees the division of the property, or property law?
     
  2. AllForHer

    AllForHer Well-Known Member

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    This question is a bit confusing, so I'll do my best here.

    Property settlements - namely the division of marital assets after separation and/or divorce - are a component of family law, so one doesn't take priority over the other.

    When you talk about property law, you're talking about a completely different field of law all together - rights of possession, ownership, leases, tenancy, that kind of thing.

    So, in short, property settlements are governed by family law, not property law.
     
  3. Matthew Lynch

    Matthew Lynch Lawyer

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    Can I ask when the parties moved out? Were they married?

    If they moved out and were de facto and it was over two years ago (or If they were married and the divorce order is of effect from more than 12 months ago) then if a party wanted the Family Court to exercise its jurisdiction they would need to seek leave (ask the Family Court's permission) to make Orders.

    The default position is that Property Law applies - that is the common law. However Family Law applies if it is applicable under the legislation and it often is applicable.

    For example if you sell your house and you are tenants in common, the proceeds of sale are automatically split according to your shares, not pursuant to Family Law. Family Law will apply only if someone brings an application in Court.
     
  4. yuko

    yuko Active Member

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    Both parties moved out. One in March 2010, the other in May 2012.

    Both parties didn't want to go to family court so mediation was held finally. Under the mediation process, the property selling and division had been discussed. However, one party threatened that she would like to take the matter to the court.

    If it is under the property law, the principals would be just terms and should be divided by financial equity or contribution towards house to make the value improvement. In that case, I thought it should be divided by how much deposit was paid by who and who maintained or renovated the house with how much the costs, etc...then the remaining balance should be divided by the parties.

    Then should family law kicks in after? I know in many cases wherein family law is put in first to take the matters off. I think this is not really fair. For example, one party borrows the deposit from their relatives for the family home, then when the property settlement comes, it is disregarded?

    In our case, it was like this. We did maintenance and reno, then the other party said she did not agree with that, so she doesn't want to pay anything. The house was on under reno when they were living together. Then after the separation, she started to say 'I didn't agree to the reno'.

    Is that really fair? Then she want to take more than the other party from the profit of the house. She already moved out with her new partner so she doesn't need the place really.
     

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