There are a number of factors that the Family Court is required to look at when determining property settlements. Many people believe that the net assets will be divided 50/50 when they separate. However, this is not always the case and is an incorrect assumption to make. Each case is different. The percentage split and property orders made will be different depending on the particular facts relevant to your case. There is no set formula and it is not a scientific or mathematical exercise.
The Family Court has a wide discretion when determining property settlements but are required to follow a set of clearly established legal principals as set out in this blog post.
How property settlements are determined:
- The first step is to identify the existing assets and the parties' existing interests in them. In other words, the Court must determine what are the assets (e.g. house, car, furniture, etc), liabilities (e.g. mortgage, credit card debts, etc) and superannuation held by the parties.
- The Court must determine whether, in all the circumstances, it is just and equitable to make an order for property settlement.
- Third, the Court should identify and assess the contributions of the parties made to the assets, including looking at and assessing, each parties' initial financial contributions, direct and indirect financial contributions made during the relationship and post separation, and any direct and indirect non-financial contributions made during the relationship and post separation, including contributions made as homemaker and parent.
- Fourth, the Court must consider the factors as set out in subsections 79(4)(d), (e), (f) and (g) of the Family Law Act 1975 ("the Act"), and the matters referred to in section 75(2) of the Act, as far as they are relevant, to determine whether any adjustment should be made to the percentage split.
- Finally, the Court should consider whether the proposed orders for property settlement, are just and equitable between the parties.
In the first appointment we will take your instructions, and depending on the information you provide to us, we will advise you about what a fair and equitable settlement would be in your particular case applying the above legal principles. We will give you an idea of what your best case and worst case scenarios are, what the property settlement will look like in practical terms, what the process is to achieve a property settlement and our estimated fees going forward.
It is not always possible to advise you on all of the above in the first appointment. This is because your matter may be very complex, and/or further investigation may be required before we can give you specific advice about your rights and entitlements. In any case, in our first appointment, we will guide you in the right direction and provide you with clear advice of what steps need to be taken next.
To make an appointment to discuss your property settlement matter, please contact Applecross Family Lawyers on (08) 9364 9915 or 0474 458 340.