How are your assets and debts divided after a divorce?

Posted by Daniela Poletti on 26 May 2017

Going through a divorce is hard enough without having to think about dividing up assets and debts. For many couples going through a divorce, it can be easy to think that assets are just divided in half. Did you know that just because you’re married or live with your partner does not mean that you are entitled to 50% of the assets if you separate?

It is a common misconception that if you separate from your spouse and/or de facto partner, you will most likely receive 50% of the total combines assets of the parties who have separated in a property settlement property order. However, this is not necessarily the case.

The Family Law system is ultimately a flexible system and the Court looks at a variety of factors before determining whether a property settlement order should be made at all, and if so, how much each party is entitled to receive.

In fact, in some cases, the Court has declined to make any property adjustment between the assets of the separated couple at all. In a recent case, the Family Court found that no property adjustment should be made in favour of the person who had about $1,000,000.00 less in assets than the other, after a 27 year relationship.

This was due to a number of factors, but mostly because the couple kept their finances almost completely separate (for example, they did not have a joint bank account or any joint debts), did not own any property together and there was a lack of evidence regarding the contributions that each party made to the other person’s property.

As the law and the recent cases make clear, separating parties are not automatically entitled to a property settlement: the Court must first consider whether it is ‘just and equitable’ in the circumstances to make such as order.

Once a Court determines that it is ‘just and equitable’ to make an Order for property settlement, then the Court goes on to consider a number of factors. These factors include;

  • The financial contributions made by each party

  • The non-financial contributions made by each party

  • The homemaker and parenting contributions made by each party

  • The impact that a property settlement order may have on each party’s earning capacity

  • Other factors such as the age, income and property of each party and whether there are any children (and which party the children live with)

  • Whether either party has paid or is liable to pay child support.

Ultimately, the Court will look at the particular facts and circumstances of each case in order to determine how much each party is entitled to. Of course, parties always have the option of coming to an agreement about how their property will be divided.

If you are unsure as to what you would be entitled to if you separate with your spouse the Family Law team at Selvaggio Lawyers can help. We will provide you with practical and thorough legal advice to clarify what you may entitled to in a property settlement and what your options are moving forward.

If you and your partner cannot come to an agreement, we are able to assist you at every step of the Court process. Contact Selvaggio Lawyers today for a consultation.