Following the breakdown of a marriage or de facto relationship, it is common for
separated parties to be unsure and therefore 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.
Unfortunately this is reflected in a great quantity of inaccurate statements often
regarded as fact by those in the community.
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.
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.
Each person’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 account
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. Property settlement is based on all of the information provided and
the discretion of the Court in deciding the matter.
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To decide how to distribute the assets the Family Court will normally take into account
factors including:-
• The current value of the assets and liabilities. The Court will require all
assets and liabilities to be identified to establish a ‘net asset pool’. This
includes superannuation entitlements, as well as assets held personally, in
partnership or by trusts, or companies.
• The direct financial contributions made by each person to the acquisition
of assets or the preservation improvement or maintenance of those
assets, this will include assets owned at the commencement of the
relationship.
• The indirect financial contributions made by each person in the
relationship, for example, the giving up of a career to allow the other
person to further their own career.
• The non-financial contributions by each person, like caring for children,
being the homemaker and maintaining or improving the assets by
personal exertion such as individual efforts in renovations that increase
the value of an asset.
• Identifying the future needs of the parties, for example, age, health,
financial resources, superannuation, care of children and income earning
capacity.
After considering all of the above the Court will consider whether any proposed property
settlement is ‘just and equitable’ in the circumstances.
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.
Summary
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 experienced Family Law Solicitors
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 9191 9293 or
email us mail@rnlegal.or