Contrary to popular belief there are no “hard and fast” rules and often no “50/50 splits” when it comes to who gets what in terms of divorce and property settlement.
Rather, it’s a decision based on what is fair and equitable for both parties depending on their circumstances.
And, with statistics indicating around a third of Australian relationships end in separation or divorce, splitting assets is a scenario many former couples face.
Here’s an insight into how divorce and property settlement works and “who gets what” in a divorce.
Common myths
Common myths abound regarding what is likely to happen to property and assets during a divorce.
Some of the most common include that assets will be split 50/50, that the man or main breadwinner will come off best, and that parties have to go to court to get a property settlement.
The reality is, there is no set of “one-size-fits-all” rules and no specific mathematical formula to decide who gets what in a divorce.
Instead a property settlement is based on what is fair for the parties involved and includes factors like whether there are children to support, and non-financial contributions like tending the home or raising children.
Meanwhile, deciding who is entitled to what doesn’t have to involve going to court.
What’s included
Whether it’s the family home, a holiday home, furniture, artworks or cars, most people have a fair idea what property needs to be divided when it comes to separation or divorce.
However, it’s important to note a property settlement can also extend to a business that you or your former partner may have an interest in and any debts or liabilities you and your partner have incurred.
It may also extend to property you acquired prior to becoming a couple or a property you have acquired since separating.
The law
When it comes to the law, one of the major factors considered in any property settlement is contribution, and this extends beyond just the financial.
This is where the homemaker contribution comes into play. So for example, if one of you worked full-time while the other stayed home to care for the children, both the financial contribution and the homemaker contribution will be taken into account.
Contribution generally extends to items like:
- Salaries and wages
- Gifts and other items of monetary value, such as art
- Inheritances
- Housekeeping
- Child care
- Maintenance
- Gardening
- Renovation
- Bookkeeping for the family business
- Loans and redundancy payments
- Superannuation
The law also factors in the future needs of each party, incorporating items like future healthcare costs, parenting costs, future earning capacity, and standard of living.
How matters are settled
Where possible, it is best that both parties agree on their property settlement without going to court, and a lawyer can assist by helping you understand the full scope of the property settlement, along with each party’s entitlements.
If you agree on an arrangement, you can seek to formalise your agreement by applying for consent orders in the Family Court. If you cannot reach an agreement, you can apply to a court for financial orders, including orders relating to the division of property and payment of spouse or de facto partner maintenance.
About T & T Lawyers
T & T Lawyers is a dynamic and progressive Sydney-based firm offering sound advice, effective strategies and the best possible outcomes in all areas of law including divorce and property settlement.
You can learn more about our services here, or contact us directly for further advice.
