Family Court of Western Australia

Examples of Property Orders

Orders must be clear and unambiguous to be capable of enforcement if required. They cannot be vague or uncertain.

They should be worded in such a way that an independent, unconnected third person who is not a party to the proceedings understands what is to happen/who is to do what and in what time period.

They should explain clearly what each party is required or obliged to do, and when.

They should direct a person or persons to do certain things within a specified timeframe.

If there is non-compliance with the orders, they should be able to be understood by a Judicial Officer who will need to know exactly what was intended by the orders in order to find that a party has breached the orders.

These property orders are given as a general example, you should seek legal advice before seeking orders specific to your situation.

If a house or land is to be sold and the proceeds divided

Forthwith OR within XX days, the applicant and respondent shall cause the property situate at (fill in the address), and being more particularly described as (fill in the land description as shown on the Certificate of Title) to be placed on the market for sale at a price and on conditions to be agreed between them.

The applicant and respondent shall do all acts and things and sign all documents necessary to disburse the proceeds of sale of the property as follows:

(a)  in adjustment of rates and taxes;

(b)  in payment of the expenses of sale including real estate agent's commission;

(c)  in payment of any monies required to secure discharge of any encumbrance registered against the title to the said property; and

(d)  the balance be divided in proportions (percentage)% to the applicant and (percentage)% to the respondent.

The applicant and respondent have liberty to apply to the Court in relation to the terms and conditions of sale.

If a house or land is to be transferred without payment

Forthwith OR within XX days the applicant OR respondent do all acts and things and sign all documents necessary to transfer his OR her right, title and interest in the property situate at (fill in the address) and being more particularly described as (fill in the land description on the Certificate of Title) to the respondent OR applicant absolutely.

If a house or land is to be transferred upon payment

The applicant OR respondent shall pay to the respondent OR applicant the sum of $XX within ZZ days.

Upon payment of the said sum, the respondent OR applicant do all acts and things and sign all documents necessary to transfer to the applicant OR respondent the whole of his OR her right, title and interest in the property situate at (fill in the address) and being more particularly described as (fill in the land description on the Certificate of Title).

If a mortgage is involved

The applicant OR respondent indemnify the respondent OR applicant and keep the respondent OR applicant indemnified in relation to all liabilities and outgoings with respect to the property including all obligation pursuant to the mortgage registered against the title to the property.

Assets other than land

The applicant and respondent each retain the motor vehicles and furniture and household contents presently in their possession or control.

Liabilities

The parties each retain sole responsibility for any debt or liability in their sole name.

OR

The applicant OR respondent indemnify and keep indemnified the respondent OR applicant in relation to the debt owing to (name).

Superannuation - where each party retain their own

The applicant and respondent each retain their own superannuation entitlements.

Superannuation - where the parties seek a superannuation splitting order in a specific amount

Pursuant to s 90XZD of the Family Law Act 1975, the following orders bind the Trustee of the Superannuation Fund to observe the Trustee obligations set out under the said Act and the Family Law (Superannuation) Regulations 2001.

(Name) is the Trustee of the (name) Superannuation Fund and for the purpose of these orders is referred to as the Trustee.

The Respondent’s member number in the Fund is (number) and the value of his interest in the Fund as at (date) is $(amount).

Pursuant to s 90XT(4) of the Act, the Court allocates to the Applicant a base amount of $(amount) from the Respondent’s interest in the said Fund.

Pursuant to s 90XT(1)(a) of the Act, whenever the Trustee makes a splittable payment from the Respondent’s interest in the Fund within the meaning of s90XE, the Trustee shall pay to the Applicant or his/her legal personal representative the entitlement calculated in accordance with Part 6 of the said Regulations using the base amount of $(amount) and there be a corresponding reduction in the entitlement the Respondent would have had in the Fund but for this order.

The operative time for compliance with these orders is 4 business days from the date that a sealed copy of the orders is served on the Trustee.

Pending compliance with these orders, the Respondent is restrained by injunction from:

(a)  taking any steps or making any elections the effect of which would convert his present entitlement in the Fund to an entitlement whereby he would receive only a pension or annuity in lieu of a lump sum; and

(b)  receiving, disposing of, encumbering or otherwise dealing with his/her superannuation entitlements with the Fund save as specified in these orders.

The Applicant immediately cause a copy of these orders to be served upon the Trustee of the Fund and request the Trustee to note the Orders and act in relation to any payment in accordance with the Respondent’s obligations.

Superannuation - where the parties seek a superannuation splitting order in a specific percentage

Pursuant to s 90XZD of the Family Law Act 1975, the following orders bind the Trustee of the Superannuation Fund to observe the Trustee obligations set out under the said Act and the Family Law (Superannuation) Regulations 2001.

(Name) is the Trustee of the (name) Superannuation Fund and for the purpose of these orders is referred to as the Trustee.

The Respondent’s member number in the Fund is (number) and the value of his interest in the Fund as at (date) is $(amount).

Pursuant to s 90XT(1)(b) of the Act, whenever the Trustee makes a splittable payment from the Respondent’s interest in the Fund within the meaning of s90XE, the Trustee shall pay to the Applicant or his/her legal personal representative (percentage)% of the splittable payment and there be a corresponding reduction in the entitlement the Respondent would have had in the Fund but for this order.

The operative time for compliance with these orders is 4 business days from the date that a sealed copy of the orders is served on the Trustee.

Pending compliance with these orders, the Respondent is restrained by injunction from:

(a)  taking any steps or making any elections the effect of which would convert his present entitlement in the Fund to an entitlement whereby he would receive only a pension or annuity in lieu of a lump sum; and

(b)  receiving, disposing of, encumbering or otherwise dealing with his superannuation entitlements with the Fund save as specified in these orders.

The Applicant immediately cause a copy of these orders to be served upon the Trustee of the Fund and request the Trustee to note the Orders and act in relation to any payment in accordance with the Respondent’s obligations.

Further information about superannuation orders

THE ABOVE SUPERANNUATION SPLITTING ORDERS ARE EXAMPLES ONLY. EACH SUPERANNUATION FUND HAS DIFFERENT REQUIREMENTS IN RELATION TO A SUPERANNUATION SPLITTING ORDER.

YOU WILL NEED TO SEND A LETTER TO THE TRUSTEE OF THE FUND WITH ANY PROPOSED ORDERS. IF YOU CHOOSE TO USE THE ABOVE EXAMPLES, YOUR FUND MAY REQUIRE YOU TO MAKE CHANGES.

THE FOLLOWING ARE SOME EXAMPLES OF LETTERS YOU MAY WISH TO USE:

Draft Letter if ongoing proceedings/commencing proceedings:

Dear Trustee,

I am the applicant OR respondent in proceedings in the Family Court of WA.

OR I intend to commence proceedings in the Family Court of WA.

I intend to ask the Court for a superannuation splitting order.

I enclose draft orders that I will be seeking.

Will you please confirm that you will give effect to the proposed orders or if you have any objection or amendments to the proposed orders.

OR

Draft Letter if you are seeking to file a Form 11 Application for consent orders:

Dear Trustee,

I intend to file an application for Consent orders in the Family Court of WA.

My former spouse and I have reached agreement to seek a superannuation splitting order.

I enclose draft orders that we will be seeking.

Will you please confirm that you will give effect to the proposed orders or if you have any objection or amendments to the proposed orders.


Last updated: 16-Sep-2019

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