Dividing Property After Separation


When you separate from your spouse you will often want to know the answers to questions like:

  • Who will keep the house or do we have to sell it?
  • Will I have a car to drive and if so which one?
  • How will we divide our money in our bank accounts?
  • Will I need to pay any money to my spouse if I want to keep the house?
  • What do we do about our business?
  • Does it matter if we own properties in Victoria and South Australia?

The answers to the above questions are dealt with in what is generally called a “property settlement”. Your entitlement to a property settlement is not worked out by an exact formula and depends on the circumstances of your marriage. The overriding factor that needs to be considered is if the division of your and your spouse’s property is “just and equitable”.

What Is Just And Equitable?

The Family Law Act 1975 (“The Act”) and past cases provide guidance about how to determine what is a “just and equitable” division of property. A number of steps are generally followed to determine what your entitlements may be. The steps are as follows:

1. What Property Is To Be Divided?

This step involves working out the value of what you and your spouse own and what you owe money on. This includes:

  • The home;
  • Investment properties;
  • Cars;
  • Investments like share portfolios;
  • Funds in bank accounts;
  • Business operated by you and/or your spouse;
  • Superannuation;
  • Mortgages;
  • Personal loans

Working out what you and your spouse have to divide can easily become complicated as there may be a company or trust structures or interests in businesses with other people.

It is very important to properly work out what property is to be divided between you and your spouse.

2. How Did You And Your Spouse Acquire What You Have?

After it is worked out what you and your spouse have to divide, the next step is to work out how did you and your spouse acquired it. This includes assessing:

  • What each of you owned when you first started living together?
  • How did you and your spouse buy property when you were together?
  • Who paid the mortgage and other expenses for the home and/or investment properties?
  • Who was responsible for caring for the home and the family?
  • Did either you or your spouse receive any gifts or inheritances?
  • How long were you and spouse together?

Your and your spouse’s contributions are then usually expressed as a percentage such as 60% to you and 40% to your spouse. It is important to note that there is NOT an automatic assessment that you and your spouse’s property are to be divided equally (50% each) just because you and your spouse were married.

3. Are There Any Other Factors To Take In Account

The next step is to see if there are any other factors that should be taken into account. These factors include:

  • Who has the care of any children of the marriage under the age of 18;
  • The income of you and your spouse;
  • The health of you and your spouse;
  • The amount of child support paid by you or your spouse.

These factors may change the percentage on how you and your spouse’s property is to be divided.

For example:

If you earn a yearly income of $150,000 and your spouse earns a yearly income of $40,000 then this disparity in incomes will most likely result in an adjustment in favour of your spouse of 10%. Therefore, if the assessment of how your and your spouse’s property has been acquired is 45%/55% in favour of you then the adjustment for other factors will change the percentage division to 55%/45% in favour of your spouse.

4. Is The Proposed Division Just And Equitable?

The final step is to stand back and look at the proposed division of property to see if it is just and equitable. Usually, the proposed division will be just and equitable after steps 1, 2 and 3 however, it is important to know that this is not always the case.

How you divide your and your spouse’s property can be extremely complex and you should obtain advice from a qualified family lawyer ensuring that you receive what you are entitled to following the breakdown of your marriage to your spouse.

 

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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