How Does the Family Court Divide Assets in Property Settlement Cases
Family law property settlement. Dividing assets after separation or divorce. Property settlement after separation or divorce.
There is no presumption in Australian law that marital assets must be divided equally between husband and wife. Instead, the Family Court has broad powers to make Orders for a just and equitable division of assets.
In deciding how the assets of a husband and wife should be distributed, the Family Court must first determine whether it should alter property interests, and then follows a 4 step process:
- Step 1: Requires all assets and liabilities to be identified. This includes superannuation entitlements, as well as assets held personally, in partnership, in trusts, or companies.
- Step 2: Requires the identification of what contributions (if any) each party made to the aquistion preservation improvement or maintenance of any asset. This includes not only financial contributions, but also non-financial contributions, and contributions as a parent and homemaker.
- Step 3: The Court decides whether any adjustment is required for the future needs of each party, taking into account matters such as care of children, disparity in income earning capacity, health, age and availability of financial resources.
- Step 4: The Court must stand back and ensure, at the end of this process, that the proposed asset division is just and equitable.
Does the Court exclude Pre-Marital Assets, gifts and inheritances?
Pre-marital assets, gifts and inheritances assets are not excluded but may in many circumstances be so significant that significant “credit” is given to the party who was responsible for bringing in the asset into the marriage.
Is domestic Violence and conduct or misconduct relevant in property proceedings ?
The simple answer is “yes”. It is an established principle that when the actions or conduct of one spouse makes the other spouse’s contributions “significantly more arduous than they ought to have been”, then this can result in that party obtaining a greater share of the assets.
Case specific approach
We approach each case on a case specific basis, as 25 years of experience as family law specialists, tells us that each family situation is very different and in taking the time to understand your specific circumstances is what guarantees you that we do understand how you are feeling and guarantees you the best outcome for your circumstances.
Does the size of the case matter ?
Absolutely, the size of the asset pool is a very relevant factor in property cases, but the approach to be taken in determining the proper result does not vary. Click here for more information: Big Property cases
How are special contributions taken into account?
Special contribution by a party can significantly affect the divisions of assets. Click here for more information: How are Special Contributions in a marriage assessed ?
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