Generally speaking, the question of ‘What am I entitled to in a divorce in Australia?’ does not have a straightforward answer. This is because every situation is different, and your entitlements will depend on your unique circumstances.
The following article will dissect the question of ‘what am I entitled to in a divorce in Australia?’ and provide an easy to understand guide which
How The Court Will Determine What I am Entitled To In A Divorce in Australia
In all divorce property settlements, there are generally four steps involved:
Step 1 – Identifying and valuing all of the parties property
Step 2 – Assessing the financial and non-financial contributions of each party
Step 3 – Identifying the needs of each party
Step 4 –Ensuring that the division is ‘just and equitable’ in the eyes of the court.
Introduction To The Court Process
Steps 2 and 3 will have the most prominent role in determining the answer to ‘what am I entitled to in a divorce in Australia?’ and step 4 may also partially affect the outcome.
There are no set values or figures for each party’s contribution but rather a subjective balancing act performed by the court. The purpose is to determine the weight of each contribution in line with the legal standard of what is ‘just and equitable’.
For example, let’s assume that the property division beings at an even 50-50 split, and then we find out that one partner is responsible for paying the mortgage and bills of the household. This division may now be adjusted favouring the partner paying for these to account for their financial contributions to a figure deemed appropriate or ‘just and equitable’ given the circumstances.
Step 2 – Assessing The Financial And Non-Financial Contributions of Each Party
This step involves identifying each party’s monetary and non-monetary contributions to the marriage and home and attributing weight to each item identified.
The Types of Financial Contributions:
- Paying the bills and mortgage
- Working
- Prior assets you brought into the marriage
It should be noted that the ownership of your assets prior to entering the marriage will be eroded with time the longer you and your partner have been together. So basically, the longer a couple is together – the more your property becomes mutual. Therefore, we can conclusively say that the longer a couple has been together is essential in determining the answer to ‘What am I entitled to in a divorce in Australia?’
The Types of Non-Financial Contributions:
- Taking care of the children and home
- Giving up working or study to be the stay-at-home parent or caretaker of the home while your former partner was working
- Things such as cooking, gardening, cleaning and making dinner
- Any maintenance work you have done to the property that has resulted in monetary savings
- Any renovations you have performed on the property which has increased the value of the home
Step 3 – Identifying the needs of each party
After the court has identified and assigned the various contributions of each party, it will move on to identifying the needs of each party. In this step, the court will consider both the present and future needs of both parties. Of these, the most common requirements that will significantly impact the division of property and assets are age, health condition, the ability to earn income and whether there are children you care for.
Other factors will be considered, such as your access to family or any inheritances you will be entitled to in the future. The court will generally compare the needs of each party and add or detract percentages of the property pool based on their judgement to balance the division.
Just like the previous step, your needs will play a significant role in determining the answer to the question ‘What am I entitled to in a divorce in Australia?’
Step 4 – Is it Just & Equitable?
This is the final step in determining the answer to ‘What am I entitled to in a divorce in Australia?’
This step is basically the court taking a step back, observing the outline of the division of assets established in the previous two steps and asking whether it is ‘just and equitable in all the circumstances?’ As noted earlier, this means when considering all circumstances of the parties involved, is the percentage split that the court arrived to fair for both individuals?
If the answer to this question is no, the court will then make any adjustments not accounted for in the previous two steps to make it fair.
Importance of Seeking Legal Advice
It is important to note when trying to understand the answer to the question of ‘what am I entitled to in a divorce in Australia?’ you remember that there is no definitive answer. You should seek legal advice from a qualified family lawyer to help give you an estimate of what you can expect.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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