When a marriage or de facto relationship breaks down, it is not unusual for separated parties to be anxious about possible entitlements in a property settlement. This is not surprising, given that family law is complicated, the disputes are often emotional and the “rules” are poorly understood.

There are also many inaccurate statements and myths about property settlement.

Automatic entitlement – a popular myth

Contrary to popular belief there are no presumptions under the family law that assets should be divided 50/50, 60/40 or in any other proportion. Therefore, there is no automatic entitlement to a specific proportion of the net assets after a relationship breaks down.

Well-intentioned “advice” from friends or family – often as a result of their own experiences – is usually misleading and creates false expectations. It is important to realise that one person’s settlement will probably be different from others you may have heard about.

Every person’s situation is different and should be carefully assessed by a qualified family lawyer.

Factors to be taken into account

A lawyer practicing family law will know exactly what the Court takes into consideration and be able to give you an indication of probable asset distribution.

To decide how the assets will be distributed, the Family Court will usually take into account several factors including:

  • The current value of the assets and liabilities and who owns the property. The court will require the property of the parties to be identified to establish a ‘net asset pool’ available for distribution. The “pool” will include superannuation entitlements, as well as assets held jointly, personally, in partnership, 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 or which have been brought in as gifts received or inheritances made to a party.
  • The indirect financial contributions made by each person in the relationship, for example, the giving up of a career to support the other 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 which might be relevant in any particular case, for example, by their age, health, financial resources, superannuation, responsibility for the care of children and income earning capacity.

The Family Court is also required to consider whether any proposed property settlement is ‘just and equitable’ in all the circumstances.

Each factor needs to be considered; no single one is, per se, more important than another but they must be assessed in the overall context. The decision by the Family Court on how to divide up property is “discretionary” and there can be a broad range within which a division might properly be made.

Summary

A friend or relative may tell you that the Family Court awarded them x% in their settlement; that does not mean you will too. Every case will be determined on its own particular circumstances. If you really want to get proper guidance, consult an experienced and qualified family lawyer. Frichot & Frichot, Lawyers have several such lawyers and would be happy to give you an indication of your entitlements and responsibilities. lease call us on (08) 9335 9877 or complete the form below to request an Introductory Consultation.

Please call us on (08) 9335 9877 or complete the form below to request an Introductory Consultation.

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