Following separation, it may be necessary to work out between the separated partners as to how assets, including superannuation entitlements, are to be divided between the parties. There is no ‘one size fits all formula’ for property division. The outcomes of each case depend on its facts and evidence, the parties’ attitudes, the strategies and approaches adopted in the conduct of your matter.
It is essential that you seek legal advice from experts. Our expert Family Lawyers will explain the legal principles to you in plain language and apply the law to your unique individual circumstances. This gives you the power to make an informed decision on what you are entitled to when it comes to property settlement and what is best for you and your children.
For married couples and for de facto partners whose relationship has ended, there are two options available to you to formulate a property settlement:
- By Consent Orders or a Financial Agreement;
- By Court Orders
Any agreement reached between the parties can be formalised by way of Consent Orders, a Binding Financial Agreement or both, depending upon the circumstances and the settlement reached. Our expert Family Lawyers are able to assess each individual situation and advise on the most advantageous method to achieve settlement and financial finality.
In advising our clients as to their property entitlements, our expert Family Lawyers apply the steps that would be taken by the Court pursuant to the Family Law Act 1975 (Cth) in determining a just and equitable division of the asset pool.
Step 1 – Identify and value both parties’ assets, liabilities and financial resources.
Step 2 – Assess contributions made by each party prior to and during the relationship
(and after separation if substantial) including:-
- Direct financial contributions (for example, assets owned at the date of commencement of co-habitation, income earned or mortgage repayments);
- Indirect financial contributions (for example, gifts, windfalls and inheritances);
- Direct non-financial contributions (for example, repairs and renovations to matrimonial property);
- Indirect non-financial contributions (for example, the care of children by one party which enabled the career advancement of the other party); and
- Contributions to the welfare of the family including contributions as homemaker and parent
Step 3 – Consider the future financial and other needs of each party, and each party’s capacity to meet those needs taking into account the following factors:
- The age and health of the parties;
- The income, property and financial resources of each party;
- The physical and mental capacity of each party for appropriate gainful employment;
- Whether a party has the care and control of a child of the marriage who has not yet attained 18 years of age;
- The party’s commitments necessary to enable that party to support themselves or a child or another person that that party has a duty to maintain;
- Responsibilities of either party to support children or any other person;
- The eligibility of either party for a pension, allowance or benefit under any Commonwealth or State law or under any Superannuation Fund or scheme;
- Reasonable standard of living and whether in all the circumstances this standard is reasonable;
- The duration of the marriage and its effect on the parties’ earning capacity;
- The need to protect the party who wishes to continue his or her role as a parent;
- If either party is cohabiting with another person, the financial circumstances relating to that cohabitation;
- Any child support assessment;
- Any Order made or proposed to be made for property settlement;
- Any facts or circumstances which the Court may take into account.
The above listed factors relate both to property settlement (where relevant) and to the issue of spousal maintenance.
Step 4 – Determine if the proposed division is just and equitable pursuant to consideration of s.79 and s.75 (2) of the Family Law Act 1975 (Cth).
The process of property settlements is complex. It is important that you find a lawyer who can advise you on a fair division of assets based on your personal circumstances and who fights for what matters to you. We have the expertise to advise you as to your contribution-based entitlement, and the likely property adjustment based on your individual circumstances and the abovementioned Court’s approach.