Property Orders During Covid-19

During Covid-19, our family law solicitors have had many enquiries about parties wanting to finalise their property matters or revisit their financial matters. Trusted family solicitor, Amy, discusses how to navigate this during our current climate.

1. What are Property Orders?

A property order is an order made under the Family Law Act 1975 regarding party’s financial affairs. It involves the division of matrimonial and de facto property and the directions of the court in those regards.

A property order finalises all financial matters between parties who have separated. Once those orders are made final, a party’s financial affairs are no longer tied with their ex-partner. This cannot be revisited, except in very limited circumstances.

2. When is it appropriate to set aside Property Orders?

Property orders are final orders. There are only limited circumstances where the orders can be revisited and there are specific provisions that apply under the Family Law Act – section 79A for married couples and section 90SN for de facto couples.

Both sections lay specific grounds that you must fit within for the court to entertain reopening your matters to set aside your property orders or substitute them for new ones.

3. What are the grounds under section 79A and 90SN of the Family Law Act?

i. Consent

You can submit a 79A or 90SN application to the court by consent. Often, circumstances have changed since initially agreeing to the property order and so both parties are on the same page of wanting to revisit it.

ii. Miscarriage of Justice due to fraud, duress, suppression of evidence or false evidence

There are some cases where both parties are not in agreement and only one is seeking that the court revisits the order. Such scenario can include a party failing to provide “full and frank disclosure,” which means that the party has not told the full story of their financial situation.

iii. Circumstances have arisen that make it impracticable to carry out the Order

A property order can also be revisited if circumstances have been changed since it was put into place and if the order simply can no longer be put into practice.

iv. Person has defaulted in an obligation to carry the Order

Although not very common, this ground refers to when a party has simply not complied by the property order and as a result, it is fair, just and equitable to vary the order or set it aside.

v. Hardship

This ground is onlyrelevant where exceptional circumstances have arisen since the order was made relating to the children of that relationship or if an applicant has care of the children.

vi. Proceeds of crime Order has been made

We very rarely see this ground because of the implications when there is a process of crime order.

It must be reiterated that one of these grounds must be met for the court to even consider revisiting your property order. Unfortunately, people underestimate when a court can revisit an order – it isn’t as simple as saying you don’t like the order and want it to be changed.

For that reason, we strongly advise consulting with a family solicitor for an indication as to whether or not your application has any prospects of success.

For tailored advice, speak to one of our trusted family solicitors at Matthew Love Family Lawyers. We provide sound advice so that you can make an informed decision that is best for your circumstance.

For more, you can call us on 1300 AT LOVE, or book online.