Property

Family Law

The division of property

When looking at the division of property the court will generally look at four steps.

Asset pool

The first thing that needs to be determined by the court is what is in the asset pool and what the net value of the pool is (deducting money owed on the item).

Normally this includes things such as the matrimonial home, investment property, cars, boats, furniture, jewellery, and superannuation. Anything with a value can be considered to part of the asset pool.

For the court to determine what the assets are, there must be full ongoing financial disclosure by the parties.

Contributions

It is important to note that the court does not only consider financial contribution, but it will also look at non-financial contributions such as caring for a child.

The Court will consider your contributions at the commencement of the relationship. Such contributions are typically property, gifts from parents and any other valuable asset that you owned. These initial contributions will diminish in importance as the length of the relationship increases.

During the relationship the court will consider financial contributions such as salary, investment income, inheritance, wind falls such as a lottery win, and financial gifts from parents. Non-financial contributions such as caring for a child or elderly parent, looking after the home, repairing the home, and managing the garden are taken in consideration.

The Court will also look at post separation contributions by the parties.

Section 75(2) factors – future needs

The court will then look at arrange of factors, especially the party’s:

Age
Education
Earning capacity
Health
Property of each party
Care of children

The Court will then make an appropriate adjustment after looking at all the above factors and more.

Just & Equitable

The last step is to consider the practical effect of any proposed division of assets.

The Court will look to see if the proposed orders are just and equitable considering the facts. This could mean that one party receives more in cash than in superannuation or that there is a different blend of other assets to the parties.

Time limits

Time limits apply for parties making an application for financial orders. If you are married, you have 12 months from the date of divorce in which to apply to the Court.

If you are in a de facto relationship, you have a 2-year period from separation to make an application to the Court.