How Does the Court divide property?
In Australia, the principles which apply are the same for married couples and de facto couples.
- The first step, work out the total value of your existing property, which each of you own, regardless of whether it is in joint or single names
- Property includes real property, cash, shares, cars, businesses, trusts, boats, caravans, a windfall like a lottery win, or the value of a partnership
- Deduct the value of existing debts, including mortgages, loans, credit cards, which attach to the property or stand-alone. The debt should be debt which was incurred during the relationship
- Secondly, one needs to work out the direct and indirect financial and non-financial contributions, including homemaking contributions, which each party has made to the acquisition, conservation and improvement of the property referred to in the first step above
Financial contributions could be a deposit, mortgage payments, or cash used to buy property.
Non-financial contributions are labour and time used to improve an asset, like a house or a business.
- Thirdly, there may need to be a further adjustment to the percentage split applied in the second step, having regard to what are known as section 75(2) factors. These factors used to be referred to as ‘needs’ factors
The needs factors look at how the marriage might have affected the parties and the party’s current financial status. For example,
- The state of health of the parties
- The desire of a party to maintain their role as a parent
- Financial commitments of the parties
- The extent to which a party has contributed to the earning capacity of the other party, which can include considerations such as child support and private school fee disputes
- The earning capacity of the parties
- Finally, the court may stand back and look at whether the proposed settlement is just and equitable. An important factor that can impact this process is whether there has been a prior attempt at resolving the dispute through ‘family dispute resolution‘. This process can be an effective way to manage conflicts and come to a fair resolution without the need for court intervention
If you would like to talk with a property settlement lawyer about your case, please call us to speak with an accredited family lawyer or message us and we will return your message promptly.
In addition, for more insights on the cost implications of divorce, you might find our blog post helpful. We outline some the typical expenses associated with the process and offer professional advice to those navigating the complexities of family law and court proceeding.
Also, for more information about how spousal maintenance is calculated in Victoria feel free to check our latest article.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.