Most couples that separate will own property, either
individually or jointly, and the division of that property is an
issue that should be dealt with as soon as possible after
You may find, as a newly separated person, that many people
offer you their opinions and advice based on their experiences of
separation and property division. Information gleaned from these
sources can be confusing and inaccurate. This type of information
can contribute to your stress, and may lead you to have
expectations that are simply not based in law – in other
words, false expectations.
The bottom line is – there is no legal presumption that
assets should be or will be divided on a 50/50 basis. The Family
Court has full discretion to make a decision based on the
individual facts of each situation.
Many factors are taken into account under the legislation to
determine who should get what property. There is no set formula nor
any automatic right to a certain percentage of the assets. Each
case is unique and will be determined on its own facts.
Some of the factors will be taken into account in a property
settlement include the contributions each party has made to the
assets. This includes financial contributions as well as
non-financial contributions (such as assisting in any renovations
or maintenance), and homemaking and parenting contributions. No one
sort of contribution is more important than the others.
Generally, if a couple have acquired all their assets together
and made equal financial contributions to those assets,
contributions may be assessed as equal. Alternatively, if, for
example, the husband had been the primary breadwinner for the
family while the wife cared full time for the children, again,
contributions may be assessed as equal.
The future needs of each party is a further factor to be
considered and may mean that a percentage adjustment in favour of
one party is appropriate. Future needs factors can include caring
for children, the parties' income earning capacities, their
ages and any health issues and each party's financial resources
You should always obtain expert family law advice as soon as
possible after separation. Your family lawyer will be able to
provide you with independent legal advice about asset division
based on the individual circumstances of your case.
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.
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