Property Settlement In Family Law
"Will I get 50 percent of the assets upon divorce?"
Answer: Not necessarily.
What is considered 'Property'?
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'Property' includes all tangible and intangible assets owned by the parties to a marriage or a de facto relationship. These assets may be owned individually by a party or jointly with their partner/spouse. Examples of such properties may include cash, shares, vehicles, jewelry, family trusts, businesses, savings, family home, inheritances, superannuation, mortgage loans, personal debts, etc.
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How 'property' is divided and what are the relevant considerations?
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Contrary to common myth, a 50/50 split of assets upon separation or divorce is never a starting point for property division. The Family court takes various factors into consideration before deciding what share or percentage of assets a party will receive. These considerations, for example, may include:
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the assets owned by a party at the time of the court hearing
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worth and nature of financial contributions made by each party during the marriage or relationship
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the length of the marriage or de facto relationship
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non-financial contributions (such as unpaid work at home and/or taking care of children)
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future needs of the parties
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need to pay spousal maintenance to a party.
Two Common Approaches In Property Settlements
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Generally, two approaches are taken by family courts in property settlements matters:
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Global Approach,
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Asset by Asset approach.
In cases involving long-term relationships, Courts prefer the Global (asset pool) approach in deciding property settlement matters. However, in short-lived relationships, an asset-by-asset approach may be adopted.
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Things to Note In Property Settlement Matters
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In property settlement matters, the following fundamental principles must be noted:
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Parties have a duty of ‘full and frank' disclosure of all the assets. Hiding assets from the court or other party may reflect badly on the credibility of the party guilty of hiding assets. There may be other consequences for not disclosing assets in such proceedings, such as cost orders by the court or reversal of the existing orders.
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There is no requirement that assets must be sold to split them up. Often, these issues may be resolved without selling the assets if the parties are cooperative. Parties may resolve their issues surrounding property through mutual (formal or informal) agreements or 'Consent Order' (which is a formal written agreement approved by the court and it has the same effect as a court order).
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The assessment of financial contributions is not a rigid and inflexible mathematical exercise. In deciding the shares of the parties, the courts try to ensure that the division is 'appropriate' and overall 'just and equitable'.
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In a long-lasted marriage, when income and resources are devoted to the benefit of the family, it is considered impossible and inappropriate to have a detailed accounting of financial contributions.
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Property Settlement is considered before Spousal Maintenance. Property Settlement received by one party is considered a relevant factor in Spouse Maintenance proceedings.
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Time Limitations
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Property Settlement claims must be brought:
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If married relationship – within 1 year after divorce order coming into force.
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If de facto Relationship – within 2 Years after the date of separation. (It is often hard to determine the exact date of separation).
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A party does not need to be 'divorced' or separated to initiate property settlement proceedings in a court.
It is always advisable to seek legal advice and assistance - before you initiate Property Settlement proceedings in a court or enter into an agreement with your spouse/partner - to know full well your obligations and rights.
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Warning! No information provided on this website in relation to Australian laws, policies, procedures, directions (or any other matter) is intended to be legal advice. The relevant laws, policies, procedures, etc., for specific types of proceedings, may differ from jurisdiction to jurisdiction. You must seek legal advice on issues specific to your situation and circumstances. Please read our Terms and Conditions.
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