Entitlements typically involve a property settlement and potentially spousal maintenance, depending on the financial needs and capacities of both parties. The core complication is that there is no automatic formula for division, and outcomes depend on full financial disclosure and specific eligibility criteria.
Spousal maintenance
Under section 72, a spouse may be entitled to maintenance if they cannot adequately support themselves and the other party is reasonably able to provide it. This generally applies if the inability to support oneself is due to the care of a child under 18, or because of age or physical or mental incapacity. In practice, this ensures a spouse’s basic needs are met while a final property settlement is negotiated.
The property settlement process
While the retrieved legislation does not dictate a specific percentage of assets, it mandates a strict duty of disclosure under section 72(5). Each party must provide full and frank disclosure of all financial information and documents relevant to the marriage in a timely manner. This ensures that any property settlement is based on an accurate picture of the total asset pool.
Defining legal separation
Separation occurs when the cohabitation of a marriage ends, regardless of whether only one party decided to end the relationship. Under section 49, parties can be held to have separated even if they continue to reside in the same home or provide some household services to one another. This allows a wife to establish a separation date without immediately having to vacate the family residence.
The disclosure struggle
Despite the legal requirement for full and frank disclosure under section 72(5), parties often struggle with missing or hidden financial information. This creates significant friction in property settlements when one party is less transparent about their assets or income. The law mandates disclosure, but enforcing it requires active legal oversight.
Questions to consider
- Do I have the financial capacity to support myself, or do I meet the criteria for spousal maintenance under section 72?
- Has my partner provided a complete and transparent list of all assets and documents as required by the duty of disclosure?
- If we are still living in the same house, have we clearly established the point at which we began living separately and apart?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.