Following the breakdown of a marriage or de facto relationship, it is common for separated parties to be unsure and anxious about their entitlements in a property settlement and the assets they are likely to retain. This is only natural given that Family Law is a complicated and emotional area of law which is often poorly understood.
People often receive “advice” from well-meaning friends or family as a result of their own experiences. This advice is often misleading and can be unhelpful when it creates a false expectation.
Automatic entitlement – a popular myth
Contrary to popular belief, there is no presumption that assets should be divided 50/50, 60/40 or in any other subjective proportion. The Family Court always has full discretion.
Every client’s situation is different and should be carefully assessed by a family lawyer qualified to give proper advice.
No two cases are decided the same and there is no presumption of any kind in relation to a financial settlement when it comes to percentage entitlements. It is important to realise that one person’s settlement will probably be different from yours and others you may have heard about.
Factors to be taken into consideration:
The factors which must be taken into account when the Family Law Courts consider how property is to be divided are set out in the Family Law Act.
A lawyer practicing in Family Law will know exactly what is taken into consideration by the Court when providing detailed and specific advice to clients. There is no universal equation applied.
The Court takes a four-step approach in determining how the property of a marriage or de facto relationship is to be divided:
- Determining the net asset pool. The Court will require all of the parties’ assets and liabilities to be identified and valued in order to establish the ‘net asset pool’. This includes superannuation entitlements as well as assets held personally, in partnerships, trusts or companies. It does not matter who ‘owns’ the property, or in whose name an asset is registered. If there is a dispute as to the value of an asset, that asset will need to be valued.
- Assessing the contributions of each of the parties, including the financial and non-financial contributions. The Court will have regard to any direct financial contributions made at the commencement of or throughout the relationship, as well as contributions made by a party to the acquisition, conservation or improvement of assets during a relationship. Non-financial contributions including contributions as homemaker and parent will also be considered.
- Assessing the future needs of each of the parties. The “future needs” factors include age, health, financial resources, superannuation, whether a party will have the primary care of a child or children and the parties’ respective income earning capacity.
- Ensuring that the overall result is both just and equitable.
No particular factor is given priority over another, meaning that someone who is the sole income earner will not necessarily be entitled to a greater financial settlement than the other person who was a stay at home parent to the children of the relationship.
It is important to remember that there is no presumption of equality (like a 50/50 split) as a starting point in respect of contributions and that each matter will be decided upon the particular circumstances of that case.
The Family Court has broad powers to make Orders for a just and equitable division of assets.
It is important for anyone considering separating from their spouse, or who has already separated, to obtain independent legal advice from an experienced Family Law practitioner about their likely property settlement entitlements.
If you would like advice, guidance or assistance about property settlement entitlements following the breakdown of a marriage or relationship, contact us on (02) 8014 5885 or email us firstname.lastname@example.org