Our Family Lawyers are approached by clients on a regular basis whose spouse or partner has said to them;
“I have spoken to a lawyer and they said that you will get nothing”
This is rarely correct. Even if all the property is owned by your partner, you may be entitled to something.
The amount of your entitlement in a separation will depend on the contributions (financial and non-financial) you have both made during the marriage / relationship, and other factors such as your income and earning capacity, your age and health, and the length of the marriage / relationship.
Set out below is a general guide to the way the division of property works in family law matters pursuant to the federal legislation, known as the Family Law Act 1975.
The Family Law Act 1975 provides for a four-step process in determining a property division within a property settlement between partners of a marriage or those in a defacto relationship being as follows:
Step 1: Identification and valuation of assets
This step is where the parties identify and agree on what are the assets to be included within the property settlement. Assets can be considered in terms of property and financial resources.
So how are the Assets identified?
Simply put – Disclosure. The parties are required by law to disclose all the assets of the relationship. Sometimes this step is a simple task. However at other times this step can become difficult if the parties are unable to agree on assets and the values of those assets, or one party is reluctant to make full and frank disclosure.
Step 2: Contributions
When determining the contribution of each party, the law looks at the different forms of contributions which both you and your partner may have made. These contributions can be financial (such as paying the mortgage and the bills) or non-financial.
The law takes into account the contributions that you have made as a homemaker, and (if you have children) as a parent. If you were studying, while your partner has been earning, you may still have made non-financial contributions by doing the household work (such as cleaning, washing clothes, shopping and cooking).
Step 3: Assessment of future needs
In addition to the consideration of the contributions made by each party, additional factors can be taken into account such as:
- The age and health of each of the parties;
- The income and financial resources of each of the parties;
- Whether the parties are able to obtain meaningful employment; and
- Whether either party has the care of a child of the marriage under 18 years.
The presence of any of the above factors can increase or decrease the amount of property allocated to a party.
Step 4: Just and Equitable Outcome
Finally, in the fourth step of the process it must be determined whether the outcome reached is just and equitable for both parties. This is why it is vitally important that you know all of your entitlements to ensure you have received a just and equitable outcome.
So the next time you or someone you know is faced with disputes over property settlements on separation, remember the four step process:
- Identification and valuation of assets.
- Contributions of each party, this includes both financial and non-financial.
- Additional Factors.
- Just and Equitable result.
There are time limits in relation to property settlement applications, so contact us to discuss your matter if you are giving consideration to these issues.