The most common misconception which clients have when their relationship breaks down (whether de facto or married) is that there is an automatic entitlement to a division of the assets equally (ie 50/50). This is not so in the Australian legal system.
What are you entitled to and how do the courts determine this?
The law has developed to a point that there is almost a step by step process. These matters must be addressed irrespective of whether you finalise your property division by way of consent or through litigation.
If a division of the assets is just and equitable (“fair”) and required, then the nett asset pool must be ascertained. The nett asset pool includes the assets, liabilities and financial resources of the parties, irrespective of whether these are held solely or jointly or held within or outside Australia. Assets include, amongst other things, superannuation, real property, bank accounts, shares, interests in business or investment. You will be required to obtain up to date statements/appraisals to show the value of these items.
Once the asset pool is determined, the contributions of the parties are assessed. Contributions include the financial contributions and non-financial contributions. Non-financial contributions include things such as caring for the welfare of the family (including being the primary parent if you have children) and contributions made indirectly to the acquisition, conservation or improvement of any of the assets. The length of the relationship can have an impact on the weight given to these contributions.
Despite the parties’ contributions, there may be circumstances which require an adjustment in one of the parties’ favour. Matters considered in this step include who has the care of the children (if any), income earning capacity (particularly if affected by the contributions made by the parties to the relationship), disparity in income between the parties, the age and health of the parties and any other aspect which the court may deem appropriate.
Once the contributions and adjustments have been determined, the court needs to be satisfied that the proposed division of the assets is just and equitable in the circumstances, both as to percentage and nature of assets.
There are of course other matters which will determine the outcome of your matter, for example statutory limitations.
We always recommend obtaining financial and/or taxation advice, particularly if you are seeking to retain any of the assets.
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