How do Australian courts decide who gets what when a relationship breaks down?
There are no laws stating that parties will divide their assets equally after separation, nor is there any established formula that gives one party or the other a certain percentage of the assets. In fact, each case will be treated on the basis of its own individual facts and circumstances.
Firstly, the Family Court will make an assessment as to whether it is ‘just and equitable’ to adjust the legal and equitable interests that the parties have in property. In other words, should there be an adjustment, and on which basis?
Secondly, the pool of assets and liabilities, and its value, must be ascertained. The net pool of property and its value is usually considered at the date of property settlement, even though this may be some months or even years after separation. This process can be particularly intricate where there are business interests, self-managed superannuation funds, family trusts and can be frustrated by non-disclosure or deceit.
Thirdly, the contributions made by each party to the acquisition and maintenance of those assets are to be considered and include: a party’s direct and indirect financial contributions, such as property owned at the commencement of the relationship or property received as a gift; a party’s direct and indirect non-financial contributions, such as unpaid work undertaken to property to improve its value; and a party’s contributions to the welfare of the family, including those made in the capacity of homemaker or parent.
Fourthly, the calculation must also consider the future needs of each party. Such considerations include the age, health and future earning capacity of each party, and whether either parent is the primary carer of the children of the relationship.
Finally, the Court must consider whether it is ‘just and equitable’ in all the circumstances to make any property settlement orders. The final division is an exercise of absolute discretion by the Family Court, and more often than not, the final division will favour one party over another.
Adelaide Family Law specialises in defacto and marriage separations and all aspects of Family Law. For a confidential discussion make an appointment with any of our experienced Family Lawyers on (08) 8113 3111.