What Property Settlement Can You Expect When You Separate?

By 12 December 2018Family Law
property settlement what to expect

Quite often people are of the view that their property will be split 50/50 if they separate.

The reality is there is no scientific formula or mathematical equation available which calculates what each person gets.

A far less precise approach is adopted by the Court in arriving at who gets what in a family law property settlement following the breakdown of a marriage or de facto relationship.

The Court focuses on the circumstances of the individuals in the relationship and must have regard to various considerations set out in the Family Law Act in arriving at a decision as to how the property of that couple should be divided between them.

The Court will generally look at how each party holds the property i.e. whose name is it held in and whether their needs to be any adjustment to the existing ownership at all.

If the Court arrives at the decision that it wouldn’t be fair to leave the ownership of the property of the parties how it exists then it will go through a 4 stage process to arrive at what percentage division of the property each party should get.

Firstly, the Court will want to ascertain what exactly it is that the parties have available to divide between them. That is, what are the assets, liabilities, superannuation and financial resources owned by either or both of the parties. Once that has been established, it is then necessary to ascertain the value of that property. Often valuations are obtained by experts at this stage so that the total net value of the property can be determined.

Once the Court knows what is available for division, it then looks at the contributions each of the people in the relationship have made to the acquisition, maintenance and improvement of that property during and after that relationship. For example, the Court will look at whether one party brought in considerable property or debt at the beginning of the relationship, whether one party was the primary breadwinner and the other was responsible for home duties and caring for the children, whether any significant gifts, inheritances, insurance payouts or other windfalls were received by either or both of the parties during the relationship and after the relationship. The Court then has to decide what percentage of the property each party should get based on how they have contributed to it and the relationship.

Once the Court assesses those contributions it then asks what are the future needs of each of the people. At this stage, the Court looks at things like the age of each of the people, whether one earns considerably more than the other, what arrangements are in place for any children of the relationship and are there any health issues which might impact one of the people earning an income.

If one of the people to the relationship had greater future needs the Court may adjust/increase the percentage division that they get as the other person will be better placed to provide for themselves in the future.

Lastly, the Court then takes a step back and looks at the overall percentage division it has arrived at to make sure that it is just and equitable in all of the circumstances. The Court may adjust the percentage division again at this point if they think it is necessary.

As it is up to the Judge what weight they will give to the contributions and future needs of the individual people, it is difficult to predict with any precision what each person will receive. However, it is possible to gauge a range of likely outcomes based on previous similar decisions and the considerations referred to in the Family Law Act. We can help people understand their likely outcomes and what is required to prove their case. Please contact our Toowoomba Lawyers if you would like to discuss your individual circumstances.

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