It is often misperceived that there is a specific formula used when determining how to divide property. However, this is far from the case and is the primary reason for which it is advised that you seek legal advice prior to commencing proceedings. Legal assistance will enable you to grasp a comprehensive understanding of your rights and obligations under the law and put yourself in the best position to achieve your desired outcomes. It is impossible to determine exactly what the judicial officer will order, although it must be kept in mind that the decision is determined based on evidence presented and thus what is ‘just and equitable’ in relation to the individual facts of the matter (For a more detailed explanation of what is just and equitable see also article post – What does ‘Just and Equitable’ actually mean?).
In relation to what is ‘just and equitable’, this is considered the final step in the settlement process following assessment of the asset pool, contributions and section 75(2) (For more detailed information on steps one to three of determining a property settlement, please see article post – What are the steps in determining a property dispute?). The last step considers whether the result of such assessments are ‘just and equitable’ to both parties as required by section 79(2). Further as highlighted by the Full Court in the Bonnaci case ; it determines how in reality a ‘just and equitable’ order can be achieved in the specific circumstances of the case.
The Family Law Act 1975 outlines general principles that the court will consider when determining property disputes. For the breakdown of a marriage this is highlighted in Sections 79(4) and 75(2); and for the breakdown of a de facto relationship this is evident in Sections 90SM(4) and 90SF(3). The principles outlined for both married and de facto relationship breakdown are identical and concern:
- What assets and debts you have and their worth
- Direct financial contributions to the relationship (e.g. wage and salary earning)
- Indirect financial contributions to the relationship (e.g. gifts and inheritance from family)
- Non-financial contributions to the relationship (e.g. caring for children and homemaking)
- Future requirements (e.g. considering age, health, financial resources, care of children and ability to earn)
The assessment of assets and debts and hence the division of property is thus highly unique to your particular circumstance and each property settlement agreement will be different. For such reason you require a specialist family law team such as that at Matthews Folbigg, to give your matter the specific attention that it requires to best assist you in reaching your desired goals.
Our specialist family law team can assist and advise in your property settlement agreement. Our Accredited Family Law Specialists are able to look at the best outcome for you and give you advice as to your legal rights and entitlements.