Considerations of the Family Courts when dividing assets
If you're going through a divorce or separation, you'll
be starting to look at how to separate joint assets into
'mine' and 'theirs'. The question is though,
legally, what are you entitled to? The views of the Family Courts
when determining what makes up the combined assets of a de-facto or
married couple are often quite expansive.
Generally speaking most assets, irrespective of whether they are
from before, during or after the relationship, are included for the
Court's consideration. This gives the Court the opportunity to
see the full breadth of finances available to the parties, and to
weigh up any other relevant circumstances when deciding how they
should be divided.
These matters become more complicated however, when the Court is
asked to take into account future assets (assets not yet possessed
by either party, but that they will become entitled to at some
future time). This was the case in the December 2016 decision of
Gilmartin & Gilmartin heard in the Federal Circuit
Court of Australia.
The case concerned a 25 year relationship where the parties had
two children who were 17 and 26 years old at the time of the
judgement. In addition to the asset pool (which had a combined
value of less than $50,000), the wife asserted that she was
entitled to a portion of the $100,000 inheritance that the husband
stood to receive from his late mother's estate.
Judge Bender noted that in addition to the parties being
separated for the two years immediately prior to his judgement
'it is not asserted that the Wife contributed in any
meaningful way to the physical care of her mother-in-law prior to
her death in 2016'. However, applying the reasoning used
by the Court in the 1992 matter of Bonnici, Judge Bender
nevertheless found that the Wife was entitled to a portion of the
estate due to the highly unusual circumstances of there being no
other significant assets available for the Court to divide.
The matter of Gilmartin provides a useful indication of
the considerations that the Courts have when deciding whether to
include a future asset (or an asset received post separation).
Judge Bender found that the following had particular
The financial and non-financial contributions of the parties
throughout the relationship (and whether the division of their
assets adequately compensates for those contributions);
The role that the parties played in the management of their
individual and/or joint finances during and following the
Whether or not it is just and equitable for the Court to
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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Equity is a powerful tool in the hands of a party to a family property dispute. This paper will examine the circumstances in which the courts will find the existence of constructive trusts or other equitable rights, how they will enforce them, and the effectiveness of this route in meeting the client's requirements.
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