Frequently Used Terms in Property Matters
The list below conveys a set of terms which frequently arise during Family Law Property Matters:
Affidavit – a written statement by a party or witness. It is the main way of presenting the facts of a case to the court. An affidavit must be signed before an authorised person (such as a lawyer or Justice of the Peace) by way of swearing on the Bible or attesting to the truth of the contents of the statement.
Appeal – a procedure which allows a party to challenge the decision made by a court.
Applicant – the person who applies to a court for orders.
Conciliation conference – an opportunity for both parties to reach an agreement regarding their financial issues arising from separation out of court. Both parties must make a genuine effort at a conciliation conference and be practical and willing to compromise.
Consent order – an agreement between the parties that is approved by the court and then becomes a court order.
Court order – the actions the parties or a party must do to carry out a decision made by a court. An order may be either interim or final.
Divorce order – an order made by a court that ends a marriage.
Enforcement order – an order made by a court to make a party or person comply with (follow) an order.
Family consultant – a psychologist and/or social worker who specialises in child and family issues that may occur after separation and divorce.
Family dispute resolution – a process whereby a family dispute resolution practitioner assists people to resolve some or all of their disputes with each other following separation and/or divorce.
Family Law Courts – comprise the Family Court of Australia and the Federal Circuit Court of Australia.
Family Law Act 1975 (‘the Act’) – the law in Australia which covers family law matters.
Family law registry – a public area at a Family Law Court where people can obtain information about the court and its processes and where parties file documents in relation to their case.
Final order – an order made by a court to bring a case to a close.
Financial agreement – A legal agreement about the financial arrangements of two people following the breakdown of their marriage or de facto relationship. The agreement becomes legally binding once both parties have received independent legal advice about the agreement and signed it.
Financial contributions – contributions made directly or indirectly by a party in the relationship that are of a financial nature.
Future needs – factors that are considered in property settlements, such as any loss of career progression for the primary carer of children, who will have the future care and control of children from the relationship and provision to allow a person to continue enjoying the same standard of living that they did during the relationship.
Four step process – the process undertaken by the court in determining appropriate property settlements. This process involves:
- Identifying the value of assets
- Determining the parties contributions
- Considering the future needs of the parties
- Determining what is a just and equitable result.
Independent property valuation – a valuation of properties involved in the settlement, completed by a property valuer for the parties jointly. Usually ordered by the court.
Interim order – an order made by a court until another order or a final order is made.
Jurisdiction – the authority given to a court and its judicial officers to apply the law. For example, the courts have jurisdiction under the Family Law Act 1975 in family law matters.
Just and equitable – a legal term for considering whether a settlement is fair and reasonable.
Non-financial contributions – contributions made by a party to a relationship that are not financial, such as being the homemaker and/or primary caregiver to children
Precedent – a decision made by a judicial officer, which may or may not be binding on other cases or orders.
Respondent – a person named as a party to a case. A respondent may or may not respond to the orders sought by the applicant.
Subpoena – a document issued by a court, at the request of a party, requiring a person to produce documents and/or give evidence to the court.
Spousal maintenance – financial support paid by a party to a marriage to their husband or wife (or their former husband or wife) in circumstances where they are unable to adequately support themselves. Spousal maintenance is also available to those in a de-facto relationship.
All definitions have been taken from the Family Law Act 1975 or the Family Court website.