Is Everything Split 50/50?
There is no automatic ruling that everything is split 50/50 when parties separate. How each party’s entitlement is assessed is a complicated process and requires careful consideration by an experienced family lawyer using the legislative framework as their guide. Each party’s contributions to the marriage/relationship are assessed as well as the parties’ future needs.
However, the following scenarios are a few basic examples of when a 50/50 split may not be appropriate:
- One party brought the majority of the assets into the marriage/relationship and there are no children.
- The parties accumulated their asset pool jointly during their time living together, had children and the children will live primarily with one parent post-separation.
- There is a large discrepancy between each party’s income-earning capacity.
The following scenarios are a few basic examples of when a 50/50 split may be appropriate:
- A very long period of living together and each party is retired.
- A short period of living together where all assets were acquired jointly during that time, each party earns a similar income and there are no children.
- One party brought more assets into the marriage/relationship but the other party will have the primary care of the parties’ children post-separation.
The above lists are not exhaustive and are included simply to illustrate some of the more common scenarios dealt with by our family law team. Each person’s situation is different and requires an assessment of its own.
The process for determining property division
The law provides a process to determine how assets, liabilities, superannuation and financial resources are to be dealt with when a marriage or a de-facto relationship ends.
First, the assets and liabilities of the parties, including their superannuation interests, need to be identified and valued. All assets are included, whether they were acquired prior to the relationship, during the relationship or post-separation and notwithstanding sole or joint ownership. The values of assets are taken into account at the time of property division, not at the time of separation.
Second, an assessment needs to be made as to how the parties have contributed to the asset pool. This assessment includes:
- Direct and indirect financial contributions (for example, salary, initial financial contribution, inheritance, gifts from parents or other relatives, etc.);
- Non-financial contributions (for example, carrying out renovations, establishing a business, etc.); and
- Contributions as a homemaker and/or parent.
Any property acquired prior to the commencement of a marriage or a de facto relationship becomes that party’s direct financial contribution towards the relationship and is called an “initial contribution”.
Next, consideration is given to whether any adjustment needs to be made, taking into account the future needs of the parties. In this step, the courts look at the age, health, income-earning capacity of each party to the relationship or marriage and the care arrangements of any children of the relationship under the age of 18. Generally, the party who has a higher future need receives an adjustment in their favour. For example, if a party has the primary care of young children of the relationship then that party is likely to get an adjustment in their favour.
Finally, a determination is made as to whether the proposed division of assets, liabilities, superannuation and financial resources is just and equitable. In effect, the courts take a step back and look at the settlement as a whole to ensure that the outcome is fair to both parties.
Both parties should consult independent lawyers to seek advice about their rights to property division. If you require such legal advice, please contact Armstrong Legal.