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Divorce in Australia – Who gets what?

Divorce in Australia – Who gets what?

Posted On: 17 August

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Are property and assets split equally?

When couples separate, the division of property, assets and liabilities is one of the main issues to be considered.  A common misconception surrounding this process is that everything is split 50/50.

There is no rule in family law property matters stating that assets and property should be shared equally, nor is there a set formula to work out who gets what.  The decision made by the courts as to how property and assets are split is a discretionary one, based on a number of factors as set out in the Family Law Act 1975.

Every situation is different, so to ensure you reach a resolution with your ex-partner that is just and equitable, it is important to obtain advice from solicitors such as Parry Coates Family Law, about your specific situation, not based on someone else’s experience.

How soon after separation should I deal with property settlement?

Generally, it is best to deal with property settlement as soon as, or shortly after, separation occurs.  Again, there is no hard and fast rule about the timing of your property settlement (except if you are Divorced). At the very least, both parties should obtain independent legal advice as to their rights and obligations in the property settlement process.

Separating parties must commence proceedings for a property settlement division (i.e. bring a court application) within 12 months of their divorce (for a married couple) and within two years of separation (for de facto relationships).

If you have not reached an agreement about the division of your property within these time limits an application seeking leave of the Court to proceed out of time will be required.  The other party may object to leave being given, or they may consent.  It is a lottery and a risk that is not necessary.

What is taken into consideration when deciding “who gets what”?

Once it is assessed that a property settlement is required, the next step in property negotiations is for the parties to identify the assets, liabilities and superannuation interests that form the property pool.  The ‘pot of gold’ to divide.  The property pool includes those interests held in one parties’ name or held jointly with a third party, or in a Trust.

Both parties have an obligation to provide full and frank disclosure to one another.  This is known as financial disclosure and this should occur early in the process.  It allows us to understand and identify the value of the property pool.

The Family Law Act 1975 sets out the general principles to be considered when making a decision regarding financial disputes after the breakdown of a marriage or significant relationship.  The general principles are the same for married couples and couples in a de facto relationship.  Those general principles are:

  • identify your property pool;
  • consider the contributions made by each party;
  • consider the relevant ‘future needs’ factors (s.75(2) and s.90SF(2).

In deciding “who gets what”, the Court will make its decision based on what it considers ‘just and equitable’ after assessing the above principles so far as they apply to the facts of your case.  There is no formula used to divide your property and no one can tell you exactly what orders the court will make.  Parry Coates Family Law can help guide you and your former spouse towards an agreement that is considered just and equitable by the Court.

Will I have to go to Court to get a property settlement?

Most family law property matters can be resolved by way of mediation or solicitor to solicitor negotiations, without the need for either party having to attend court.  Our solicitors at Parry Coates Family Law, can assist you in reaching that agreement and formalising the same by way of Consent Orders or Binding Financial Agreement (BFA).

Regardless of whether you decide to settle your property issues by Consent Orders or BFA it is crucial to ensure you obtain expert legal advice from experienced family lawyers such as Parry Coates who can ensure you receive a just and equitable outcome as quickly and cost effectively as possible.

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