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Life After Separation – Part 10 Dividing the assets and selling the family home

Life After Separation – Part 10 Dividing the assets and selling the family home

Posted On: 21 November

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Here we are, the last of the 10-part series. Over the weeks, I have talked about co-parenting after separation, managing blended families and paying child support and other expenses for children. I haven’t talked about dividing the assets and selling the family home, another difficult step in the post-separation world.

From a family lawyers’ perspective, family law financial matters are about numbers or dollars and percentages. The Family Law Act 1975 (Cth) outlines the factors required to be considered when dividing the assets, liabilities and superannuation benefits of parties after separation. Lawyers explain the process, gather information and provide advice on the next steps and at some stage in the process, give advice on the range of possible outcomes.

Some may say it’s a clinical process. The reason for a separation is irrelevant. We operate under a no-fault system. It’s a harsh reality for some clients, especially so when they have perhaps been blindsided by the separation.

For some clients, they are happy with the clinical nature of the process and simply want to know ‘what am I entitled to?’

For other clients, the reality of the ‘next step’ can be overwhelming and upsetting. For example, a person who has been the ‘stay at home parent’, fulfilling an important unpaid role of managing the household and caring for the children, who gave up paid employment or a career, is told they will need to find alternate housing for themself and the children because the family home needs to be sold. There are simply not enough funds to run two households.

To quote from an iconic Australian movie, “You can acquire a house, but you can’t acquire a home. Because a home is not built of bricks and mortar but of love and memories. You can’t pay for it and you’re just short-changing people if you try.”[1]

Children are raised in the family home. The family is settled, and the home was where memories were created.

As a family lawyer, all I can say to a client who is struggling to come to terms with reality that the home will be sold, ‘memories aren’t lost when new memories are being created. Whether the new home is a rental or is bought, children will be okay wherever their parents are’. There’s nothing much else a family lawyer can say.

After a certain level of empathy is given, we need to bring the client back to the property settlement process. Walk them through each step. Help them identify the property pool we are dividing, place a value on the pool, look at contributions made and discuss how the pool is divided. Unfortunately, the property settlement process is not black and white, it’s grey. It is a discretionary system. There is no formula where we can type in the facts of the matter and hit enter to get the answer.

I regularly tell my clients, and those parties I am mediating, we can give the same set of facts to 10 of our Judges and they will invariably give us different answers, all of which are in the range of possible property settlement entitlements. This is the reason that parties need to compromise when negotiating the division of their assets, liabilities and superannuation benefits. The first step in a family law mediation is compromise. Without it, there will be no agreement.

Over the 23 years of being a family lawyer, my personal and professional life has changed significantly. There have been ups and downs. Happy times and not so happy times. I’m not one that particularly likes change, but in all those years, there’s been times when I’ve had no choice. What a surprise, I adapted, coped and survived. When Parry Coates Family Law was started, coming up with a tag line was easy, for me personally and professionally it was a ‘Different Direction. New Beginnings’.

[1] The Castle – Laurie Hammill

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