Do we start at 50/50?
After the breakdown of a de facto relationship or marriage, parties are usually uncomfortable about their financial and property entitlements.
There is a myth that there is a presumption that assets should be divided equally. There is, however, no automatic entitlement in property and financial matters. Each parties’ entitlement depends on their circumstances and the entitlement should be determined and estimated by an experienced family lawyer.
There is no presumption of a percentage entitlement in relation to a property or financial settlement.
The things that are taken into account when determining a property/financial settlement.
In Australia, the Family Court determines how property and financial matters are to, the Family Court determines how property and financial matters are to be settled by reference to the Family Law Act. Family lawyers will tell you what is to be taken into consideration by the Court. Again, there is no formula to be applied as the settlements are based on all of the facts provided and the discretion given to the Court by the Act in deciding each case.
The Court will, however, take into account the following factors:-
- Whether it is just and equitable to make an order in the first place.
- The value of all assets and liabilities are identified so as to establish the net assets, including assets held individually, in partnership, by companies and by trusts.
- The contributions made by each party to the acquisition, maintenance and improvement of the assets, including financial contributions, assets owned at the commencement of the relationship, windfalls such as gifts from parents, inheritances, redundancy packages, etc.
- Non-financial contributions made by each party such as where one party looks after domestic matters or children to the detriment of their career.
- Indirect financial contributions such as giving up a career to allow the other party to further their own career.
- The future needs of the parties such as whether they have responsibility for the care of children, their income earning capacity, their qualifications, age, financial resources, health and superannuation.
Remember that there is no presumption of a 50/50 split as a starting point and that each matter is decided upon the particular circumstances of each case.
The Family Court can make Orders that are just and equitable in relation to division of property.
Separating parties should obtain independent legal advice about their entitlements at the earliest opportunity.
Should you seek assistance with property settlement entitlements following the breakdown of your marriage or relationship, email us [email protected] or call 03 9088 3184 (Melbourne) or 02 9188 2031 (Sydney).