31 Jul Family Law Q&A
Who gets what? How do we sort everything out and decide on a division of our assets?
With about 1 in 3 Australian marriages ending in divorce almost everyone knows someone who has been involved in the breakdown of a marriage or a de facto relationship. Not surprisingly this often results in rumours about what each party is entitled to receive. Rumours such as “the wife has the kids so she’s entitled to 70% of everything” or “if the wife has the kids then she gets to keep the house”, or “both parties are working so things should be divided 50/50” are almost always inaccurate and can result in much confusion and angst.
Each case has to be dealt with on its own particular facts and no two cases are the same. The Family Law Act and the cases that have interpreted the Act since 1975 have established a way of working out how to divide property and the lawyers must advise following that approach. It is basically a four step approach:
(i) We must identify and value the family assets, liabilities and financial resources as at the current date. This includes things such as real estate, bank accounts, shares and superannuation, anything in joint names as well as anything in the individual names of the parties. Difficulties of course lie where there are businesses, companies, trusts or partnerships and as to how to value those things.
(ii) To assess the parties’ contributions to those assets to date, both directly and indirectly. Contributions may both be financial or non-financial. That is, financial contributions such as the income earned, the value of assets brought into the marriage by any one party, monies that came into the relationship by way of inheritance or gifts, personal injuries payouts and redundancies. Non- financial contributions are also important, such as contributions to the family as homemaker and parent. We then assess those factors and we might, for example, come to the conclusion that on the basis of all those contributions the parties have contributed 50/50 each, or 60/40 or otherwise.
(iii) To consider the future needs of the parties, in particular their age and health, income, earning capacity, the responsibility to care for children, and how that might affect the parties earning capacity. Where there is, say the wife at home looking after young children with a low income, then her future needs are greater than the husband’s who has a steady well-paid job, and a percentage adjustment would be made in the wife’s favour.
(iv) To consider the effects of these findings so as to create Orders to divide the matrimonial property in a just and equitable way.
As you can see a lot of facts need to be considered and could be viewed differently by the different parties, so disputes are common. The parties are advised to negotiate these issues with the assistance of their legal representatives so as to try to achieve an agreed settlement. If however, the matter cannot be settled at the end of the day a Judge will have to decide.
Do you need to discuss the division of assets in your matter? For all of your Family Law matters and concerns contact Solari and Stock Miranda on 8525 2700 or click here to book your free 30 minute consultation.