Family Law Property Settlements: Is a 50/50 split the starting point?

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:

• The current value of the assets, liabilities, and financial resources. The
  Court will require all assets and liabilities to be identified to establish a ‘net
  asset pool’. This usually includes superannuation entitlements, as well as
  assets held personally, in partnership or by trusts, or companies.
• The direct financial contributions made by each person to the acquisition
  of assets or the preservation improvement or maintenance of those
  assets, this will include assets owned at the commencement of the
  relationship.
• The indirect financial contributions made by each person in the
  relationship, for example, work done on a property such as renovations.
• The non-financial contributions by each person, like caring for children,
  being the homemaker and maintaining or improving the assets by
  personal exertion such as individual efforts in renovations that increase
  the value of an asset.
• Identifying the future needs of the parties, for example, age, health,
  financial resources, superannuation, care of children and income earning
  capacity.

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.com.au.

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