Many women are surprised to learn that there isn’t an automatic “right” to 50% of the marital pool of assets upon separation. This has been the subject of a lot of controversy, with member of parliament and policy advocates calling for this to change.
Anticipating what assets, you are set to retain when you separate can be complicated – especially when you might have friends who have experienced separation and a property/financial settlement. Everyone seems to have a different view about your situation! A weekly catch up with friends can leave you feeling overwhelmed!
Having an experienced lawyer who is skilled at representing you both in and outside the Courtroom can mean the difference between having the means to enter the next chapter of your new life and having to struggle to make ends meet. Often, listening to your friend’s experience can be a source of reassurance, but it often doesn’t reflect the legal principles or the facts that are relevant specifically to your case.
The 4 step approach to your property settlement
There are several guiding principles that the court follows that guides them in making decisions that alter property interests between separated couples. These principles are largely contained in section 75 and section 79 of the Family Law Act 1975 if you were married or section 90SF and section 90SM of the Family Law Act 1975 (if you were in a de facto relationship).
STEP 1: MAKE FULL AND FRANK DISCLOSURES
One of the first starting points for your property settlement includes the parties making full and frank disclosure. This needs to be undertaken in order for the property pool to be correctly identified.
- What does the marital pool of assets include?
- What is the value of the assets (including Superannuation)?
- What are the liabilities?
In simple terms, there needs to be the identification and valuation of the assets – what exactly is available for distribution to you and your ex-partner?
STEP 2: DETERMINE CONTRIBUTIONS
The second step is to determine the contributions that you and your ex-partner made to the marriage or the relationship.
This does not just include the financial contributions!
The concept of “contributions” in property/financial family law matters includes both direct financial contributions and indirect financial contributions, direct and non-direct non-financial contributions and the contributions that you or your ex-partner may have made to the welfare of the family.
STEP 3: FUTURE NEEDS OF BOTH PARTIES
The next step involves the Court determining what the future needs of the parties may need. This can include consideration of the age, health, care of children, income disparity and whether you or your ex-partner has access to a financial resource.
STEP 4: JUST AND EQUITABLE
It is important to remember that the Court can’t make orders for the alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. This includes any applications for Consent Orders that are filed at the Court.
This process may sound overwhelming, but it doesn’t have to be!
An experienced family lawyer can guide you through the process and provide advice as to your likely entitlement to the marital pool of assets. Seeking legal advice doesn’t mean that Court is the only option to resolve your property/financial dispute.
Often, experienced family lawyers are able to assist in the parties resolving their property/financial dispute amicably; leaving you free to save the weekly catch ups with the girls for the important issues – like when is the next season of Bridgerton going to be released?!