Following the breakdown of a marriage or de facto relationship, it is common for separated parties to be unsure and therefore anxious about their entitlements in a property settlement and the assets they are likely to retain. This is only natural given that Family Law is a complicated and emotional area of law which is often poorly understood.
Unfortunately, this is reflected in a great quantity of inaccurate statements often regarded as fact by those in the community.
Automatic entitlement – a popular myth
Contrary to popular belief, there is no presumption that assets should be divided 50/50, 60/40 or in any other subjective proportion. The Family Law Courts always have full discretion.
People often receive “advice” from well-meaning friends or family as a result of their own experiences. This advice is often misleading and can be unhelpful when it creates a false expectation.
Each person’s situation is different and should be carefully assessed by a Family Lawyer qualified to give proper advice.
No two cases are decided the same and there is no presumption of any kind in relation to a financial settlement when it comes to percentage entitlements. It is important to realise that one person’s settlement will probably be different from yours and others you may have heard about.
Factors to be taken into account
The factors which must be taken into account when the Family Law Courts consider how property is to be divided are set out in the Family Law Act.
A lawyer practicing in Family Law will know exactly what is taken into consideration by the Court when providing detailed and specific advice to clients. There is no universal equation applied. Property settlement is based on all of the information provided and the discretion of the Court in deciding the matter.
To decide how to distribute the assets the Family Court will normally take into account factors including:
After considering all of the above the Court will consider whether any proposed property settlement is ‘just and equitable’ in the circumstances.
No particular factor is given priority over another, meaning that someone who is the sole income earner will not necessarily be entitled to a greater financial settlement than the other person who was a stay at home parent to the children of the relationship.
Summary
It is important to remember that there is no presumption of equality (like a 50/50 split) as a starting point in respect of contributions and that each matter will be decided upon the particular circumstances of that case.
The Family Law Courts have broad powers to make Orders for a just and equitable division of assets.
The preceding information is general and not intended to represent legal advice. You should always consult a lawyer for advice specific to your circumstances and before deciding on a course of action.
It is important for anyone considering separating from their spouse or de-facto partner, or who has already separated, to obtain independent legal advice from an experienced Family Law practitioner about their likely property settlement entitlements.
If you would like advice, guidance or assistance about property settlement entitlements following the breakdown of a marriage or relationship, contact us on 03 8415 5600 or email us at reception@hartleyslawyers.melbourne.