Family Law Property Settlements: Is there a presumption regarding the division of assets?
Family Law is often a complicated and emotional area of law and getting the correct advice about your circumstances from the very beginning can help settle your matter early. This article looks at common misconceptions that people often hold about family law matters.
Together less than 2 years, we’re not in a de facto relationship – myth
Under s4AA of the Family Law Act, a de facto relationship commences if two people who are not married (and not related) have a relationship as a couple living together on a genuine domestic basis having regard to all circumstances of their relationship.
The Court may have jurisdiction to make adjustments to the property pool of a de facto relationship prior to the parties living together for 2 years if:
• there is a child of the relationship;
• the relationship was registered under a State or Territory law; or
• one party made a substantial contribution, whether financial or non-financial, and a failure of the court to hear the property proceedings would cause that party a serious injustice.
Automatic entitlement to 50% of property – myth
Contrary to popular belief, there is no presumption that assets should be divided 50/50, 60/40 or in any other subjective proportion. Where matters fall within the jurisdiction of the Family Court, the Court has full discretion to make property orders that are just and equitable based on your particular situation.
People often receive "advice" from well-meaning friends or family as a result of their own experiences. This advice can be unhelpful as it can create a false expectation that your experience will be the same.
Because each person's situation is different, even if you do not intend to act on any division of property at the time, you should seek initial advice on your situation as soon after separation as possible from a Family Lawyer.
It is important to realise that one person’s settlement will probably be different from yours and others you may have heard about.
Factors to be taken into account
The factors which must be taken into account when the Family Court considers how property is to be divided are set out in the Family Law Act.
The process of the Family Court will normally involve:-
• Calculating the current value of all assets and liabilities at the time of the hearing regardless of whether they are jointly held. The Court will require all assets and liabilities to be identified which includes superannuation entitlements, as well as assets held in partnership, trusts, or companies.
• The direct financial contributions made by each person to the acquisition of assets or the preservation, improvement or maintenance of those assets.
• The indirect and non-financial contributions made by each person in the relationship. For example, the giving up of a career to allow the other person to further their own career, caring for children, and maintaining or improving assets by personal exertion such as renovations, that increase value of an asset.
• Identifying the future needs of the parties, for example, age, health, financial resources, superannuation, responsibility for care of children and income earning capacity.
Just because the partner may have reached an agreement does not mean that the Court will merely ‘rubber stamp’ the agreement. After considering all of the above, the Court will consider whether any proposed property settlement is ‘just and equitable’ in the circumstances.
No particular factor is given priority over another, meaning that someone who is the sole income earner will not necessarily be entitled to a greater financial settlement than the other person who was a ‘stay at home parent’ to the children of the relationship.
It is important for anyone considering separating from their spouse, or who has already separated, to obtain independent legal advice from an experienced Family Law practitioner about their likely property settlement entitlements.
If you would like advice, guidance or assistance about property settlement entitlements following the breakdown of a marriage or relationship, contact us on 61 2 9212 1099 or email us firstname.lastname@example.org