Is separation just a 50/50 split?
Many Australians assume, after divorce or separation upon break down of a long relationship, the assets of the marriage (or separation) are simply split down the middle – half to one and half to the other.
While this may have been the case a long time ago, in most instances a straight 50-50 split may result in an outcome that is unfair to one of the parties.
There are a number of factors that the Family Courts take into account when deciding a percentage split. Addressing them all would make for an extremely long article, but in short, the Courts will apply a four-stage process:
- The court identifies and values all of the property of the relationship, taking into account liabilities and financial resources as at the date of the hearing.
- The Court then identifies and assess contributions made by both parties over the course of the relationship, and determines the contributions as a percentage of the net value of the property.
- The court assesses a parties future needs, and then adjusts the percentage split from step 2 accordingly.
- The court finally considers all the existing findings and makes adjustments as necessary to ensure that the outcome is just and equitable.
A 50-50 split is generally used as the starting point – however, it is adjusted according to the above factors.
For example, it is not uncommon for one party to drop out of the workforce to take on full-time child care responsibility. In this scenario, assuming both parties went into the marriage with roughly similar assets, the court may assess contributions to the marriage to be approximately the same– one took on responsibility for raising children while the other worked.
However, when it comes to needs factors, one party may have a greater need for distribution from the asset pool. For example, the party that takes on the child raising responsibility may have a greater need, to compensate, for the extra expense of caring for children. That party’s future earning capacity may (likely) be less than the other party’s, if the working party has continued to work and gain experience and improve his or her future earning capacity.
If you have any questions about your potential entitlements in the event of property settlement, you ought to seek advice from a lawyer with family law expertise.
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