Understanding Divorce Property Settlement Australia: Key Factors and Legal Considerations
Family and Divorce Law Lawyers Parramatta Sydney
We are frequently asked by clients to advise on settlement outcomes when undertaking property settlement. We need to stress that a divorce is a separate legal application to a division of assets and property and when we are asked who gets what in a divorce, its generally in relation to property settlement not the divorce application itself which can be filed after any parties have been separated for 12 months.
The first step in the process of dividing assets and property is to determine what property is considered to be part of the marriage and is subject to division by the court. Not all matters in which parties were in a marriage situation or de facto situation will necessarily be eligible for property adjustment. It depends on the facts and circumstances of each case.
If a party is eligible to seek a division of the assets at the time of separation, then the court will look at all assets and liabilities. This can include things such as the family home, cars, furniture, other investments and superannuation.
The court will look at any assets that were present at the commencement of the relationship, any that were acquired or were provided by gifts or inheritances for example and also any assets that are still remaining as at separation or have been disposed of by one or more parties after separation.
There are several factors that need to be taken into account and in summary these can include:
- Financial and non financial contributions made by each party to the acquisition, conservation and improvement of the property.
- The effect of any of the orders on the future needs of the parties including the care and responsibility for children, the age, health and earning capacity of each of the parties and any children.
- The income, property and financial resources of each of the parties.
- The responsibilities of each of the parties in relation to maintenance of the children and payment of child support for example.
- Any other matter the court considers relevant which could include factors such as wastage, depletion or hiding of assets.
Superannuation is also provided for in relation to the assets and liabilities of the estate. Superannuation certainly can be subject to a division by the court either by agreement between the parties or a court order.
We are frequently asked if a divorce automatically relates to an equal division of property. The short answer is no. As indicated above, the court will firstly consider if its appropriate to make any property settlement or division orders and then moving on from that will look at the number of factors including those listed above. An equal division is not an automatic step in the process of property settlement under the Australian Law which is the Family Law Act 1975.
SUMMARY
In summary, the court will look at a number of factors when determining who gets what at the time of separation (and divorce) in Australia. This can include the financial and non financial contributions of each of the parties, the acquisition, improvement and maintenance of assets, the receipt of gifts and inheritances as well as other factors such as the conduct of the parties after separation and they include the hiding of assets, the non disclosure of assets and wastage.
Our team at Parramatta Family Law Lawyers and offices across Western Sydney are able to assist. We have a team of specialist lawyers who have undertaken additional training in this area to provide advice and representation.
Please contact us by making an appointment on our website www.rafton.com.au or reception@rafton.com.au