How Do The Courts Decide Who Gets What In A Property Settlement?

Couple holding hands walking into the sunset

There is a four-step approach under the Family Law Act.

Step 1 Identify and value all property of the relationship including debts. This property can include property you attained prior to or after the relationship.

Step 2 Take into account each party’s:

• Financial contribution made directly or indirectly by or on behalf of a party or child of the marriage to the acquisition, conservation or improvement of any of the property of either party (whether or not the property has ceased to be the property of that party);

• Any non-financial contribution (mad

e directly or indirectly, as above);

• The contribution by a party to the welfare of the family (the parties and any children) in the capacity of homemaker, parent or otherwise;

• The effect of any proposed order upon the earning capacity of either party;

• Any relevant matters under s 75 (2) 9or s 90SF (3));

• Any other order made under the Act affecting a party or a child; and

• Any child support that a party has provided or is to or might be liable to provide in the future.

• Whether a party has wantonly or recklessly caused the deterioration of an asset.

Step 3 Other factors to be taken into consideration are:

• The age and state of health of each party;

• The income, property and financial resources for each party and the physical and

mental capacity of each for appropriate gainful employment;

• Whether either party has care or control of a child of the marriage;

• The commitments of each party that are necessary to enable the party to support; o Himself or herself; and

o A child or another person that the party has a duty to maintain.

• The responsibilities of either party to support any other person;

• The eligibility of either party for a pension, allowance, benefit or superannuation;

• A standard of living that in all the circumstances is reasonable;

• Extent to which payment of maintenance would increase the earning capacity of an applicant by enabling them to undertake a course of education or training or establish themselves in a business or otherwise to obtain an adequate income;

• The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

• The extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the respondent;

• The extent to which the duration of the marriage affected the applicant’s earning capacity;

• The need to protect a party who wishes to continue their role as a parent;

• Financial circumstances relating to cohabitation with another person;

• The terms of any property order;

• Any child support that a party has provided, is to provide, or might be liable to provide in the future for a child of the marriage;

• Any fact or circumstances which, in the opinion of the court, the justice of the case requires to be taken into account;

• Any terms of any financial agreement that is binding on the parties

Step 4 Once the court has considered the first three steps, it must decide exactly as to how the property is to be divided, that is, who gets what.

It must then consider whether the way the property is divided is fair and reasonable in all the circumstances.

Separation is an extremely stressful period and even if you don’t want to engage in a lawyer for negotiations and to finalise your settlement it is so important to know your rights and what you are entitled to and what the other party is not entitled to.

Too many times client’s come for advice after a settlement has been finalised only then realising what they were entitled to.

Ring Skene Lawyers now to know your rights.

Disclaimer: The above information is not to be taken as advice as each matter is unique to its own set of circumstances.

We highly recommend that you seek legal advice before you commence any action regarding your matter.

For clarification, please contact us on 0431 336 999 or amanda@skenelawyers.com for a free 15 minute consultation.

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