In a NSW divorce, your spouse is entitled to a share of the assets and liabilities acquired during the relationship, and potentially ongoing spousal maintenance. Determining the exact amount each party receives is a complex process governed by the Family Law Act 1975, and depends heavily on the specific circumstances of your marriage.
What assets are included in the pool?
The starting point is identifying all the property owned by either or both of you. This includes not only the family home and other real estate, but also superannuation, savings, investments, vehicles, and even businesses. Section 79 of the Family Law Act 1975 outlines the factors the court must consider when determining how to divide the property pool.
How does the court decide on a fair split?
The court aims for a ‘fair’ outcome, not necessarily an ‘equal’ one, although an equal division is often the result. The court considers the contributions of each party to the relationship, including financial contributions, contributions as a homemaker and parent, and any sacrifices made for the benefit of the family. Section 90SM details the approach to assessing contributions. The length of the marriage is also a significant factor.
What about superannuation?
Superannuation is considered property for the purposes of a divorce and is subject to splitting. This can be done by transferring a portion of one party’s superannuation to the other, or by applying for a superannuation agreement. Sections 90XZD and 90XZG outline the process for dealing with superannuation interests.
The valuation problem
Accurately valuing assets, particularly businesses or complex investments, can be a major sticking point. Disagreement over valuation often leads to costly and time-consuming expert evidence. Obtaining independent valuations from qualified professionals is crucial, but even then, differing opinions are common. The court ultimately makes the final determination, but this can be a source of significant contention.
Questions to consider
- What documentation do I have to support my financial contributions to the relationship?
- How will the superannuation split affect my retirement plans?
- What are the tax implications of any property transfer orders?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.