When contemplating a divorce or separation, most people assume that their assets will be divided equally. However, at law, there is no 50-50 split rule, and the Court will look at many factors in determining how the marital assets of a couple will be divided. The way your assets and debts will be shared between you and your ex-spouse or partner will depend on the individual circumstances of your family.
What can be divided?
All property, including assets and liabilities, can be divided in a divorce. This can include:
- Real estate;
- Mortgages; and
A financial order is a set of orders made by the court in relation to division of property or money. These orders can be made based on an agreement between the parties, using Family Dispute Resolution, or after a Court Hearing or Trial. When a final order is made, each person must follow it.
Factors court will assess
Under s 74 of the Family Law Act 1975, the court will make any order that it considers proper for the provision of maintenance in spousal proceedings, and they will use only the factors listed under s 75(2) of the Family Law Act 1975 to help reach their decision.
Some factors they will take into account are:
a) The age and state of health of each of the parties;
b) The income, property and financial resources of each of the parties;
c) Whether each party has the control or care of a child;
d) Commitments and responsibilities of each of the parties to support themselves, the other person or a child;
e) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.
In relation to property settlement proceedings the court shall take into account the factors listed under s 79(4) of the Family Law Act 1975.
These factors will include:
a) The financial or other contribution made directly or indirectly on behalf of the party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property;
b) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
c) the effect of any proposed order upon the earning capacity of either party to the marriage;
d) any relevant matters referred to in subsection 75(2);
e) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
f) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Furthermore, the court uses similar principles under sections 90SM(4) and 90SF(3) for de facto relationships.
Seeking legal advice
It is advised that you obtain legal advice before applying to the court for a property, maintenance, or child support order. The court is unable to provide legal advice on any family relationship issue so a lawyer will be able to help you understand your rights and responsibilities about how to move forward. They may also help you reach an agreement before going to court helping you save time, costs, and stress.
Nicola Maltman – Law Clerk – Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.