If you have been involved in family law matters, then you may be familiar with Section 79(5) factors, which the Federal Circuit and Family Court of Australia (the “Court”) considers when assessing both current and future circumstances. In this article, we break down what Section 79(5) factors are and explain their potential impact on your family law proceedings.

What is Section 79(5) in Family Law?

This section of the Family Law sets out numerous factors that the Court may take into account in deciding how to distribute property in family law property settlements.

What factors are considered in a Family Law Property Settlement?

Section 79(5) of the Family Law Act 1975 (Cth) sets out numerous factors that may be taken into account by the Court in property settlements when determining whether there are any special circumstances that require adjustment to the property settlement amount.

Current and future contributing factors the Court will consider in a Family Law Property Settlement

• The effect of any family violence, to which a party has subjected or exposed the other, on their current and future circumstances
• The age and health of each party
• The income, property and financial resources of each party and their physical and mental capacity for appropriate gainful employment
• The effect of any material wastage caused intentionally or recklessly by a party
• Any liabilities incurred by either party, including the nature of the liabilities and the circumstances relating to them
• Whether either party has the care or control of a child of the relationship who is under 18, including the need of either party to provide appropriate housing for the child
• Commitments relating to support of themselves, a dependent or other person
• Eligibility of either party for a pension, allowance or benefit
• The rate at which such pension is being paid to the party
• The extent to which payment of maintenance could enable further education and therefore increase one of the party’s earning capacity
• The effect of any proposed order on the ability of a creditor of a party to recover a creditor’s debt
• The extent to which one party has contributed to the income, earning capacity, property and financial resources of the other party
• How the length of the marriage affected the earning capacity of the party seeking maintenance
• The need to protect a party who wishes to continue their role as a parent
• Financial circumstances relating to cohabitation with another person
• A standard of living that in all the circumstances is reasonable
• Any child support that one of the parties is liable for
• The terms of any financial agreement binding on the parties to the marriage.

This requires the Court to anticipate what each party’s life is likely to look like in the future and award a percentage uplift to the party with the greater ‘need’. As seen above, there are many factors that the court will take into consideration when deciding who gets what portion of the assets. It is therefore important to understand that property settlements can become quite complex.

Contact Us

If you need strategic legal advice tailed to your unique circumstances, please contact Etheringtons Solicitors in North Sydney on 9963 9800 or at via our contact form. Our highly experienced family lawyers are ready to assist with your property settlement matter.