WHAT IS PROPERTY SETTLEMENT & WHAT AM I ENTITLED TO?
There are a number of things you need to consider when separating from your partner. One key consideration is how to divide your assets, liabilities and superannuation entitlements. The intention of this article is to briefly summarise the Court's approach to property settlement and to provide you with direction going forward.
Property settlement is how the parties' asset pool is divided between them. Once the Family Court is satisfied it should make Orders adjusting parties' interests in property, it generally adopts a four step approach.
THE 4-STEP PROCESS
- Step 1 is to ascertain the assets, liabilities and superannuation entitlements of the parties as at today's date (not the date of separation as is a common mistake).
- Step 2 is to assess the parties' contributions made towards that asset pool, which includes both financial contributions and non-financial contributions including homemaker and parenting contributions. After step 2 the Court often makes a finding as to the percentage of contributions made by each party which is dependent on the particular circumstances of that relationship.
- Step 3 is to consider if there should be an adjustment to that percentage based on any future needs factors of the parties. These factors include, for example, the parties' respective income earning capacity, if either of the parties has care of children of the relationship under 18 years, and, if either of the parties is co-habiting with another person, the financial circumstances of that cohabitation.
- Step 4 involves the Court stepping back and considering if the outcome it has achieved is "just and equitable" and if so, how to implement the outcome; i.e. how to divide up the parties' asset pool in accordance with that percentage.
It is a discretionary system which means that each case is decided on its own facts. It makes it difficult to predict with certainty what outcome a Court is likely to achieve. It is important to obtain legal advice early on to provide you with guidance and understanding of the process and to empower you to make informed decisions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.