How Much Will I Get in a Divorce or Separation? Understanding Property Settlements in Australia
Understanding Property Settlements in Australia
When a relationship ends, one of the most pressing concerns is how much each person will receive in the property settlement. Unlike some legal matters that follow strict formulas, family law property settlements are based on principles of fairness, meaning the outcome depends entirely on the specific circumstances of each case.
There is no automatic 50/50 split in Australia. Instead, the court considers a range of factors to determine what is just and equitable, assessing financial and non-financial contributions as well as future needs. The Family Law Amendment Act 2024 has introduced significant changes to how property settlements are determined, ensuring that financial abuse and family violence are properly accounted for in decisions about asset division.
Key Factors in Property Settlements
Identifying Assets and Liabilities
The first step in any property settlement is identifying all assets and liabilities. This includes real estate, superannuation, businesses, vehicles, shares, and debts. It does not matter whether the assets were acquired before, during, or after the relationship—the entire financial picture must be disclosed.
Contributions of Each Party
The court examines the contributions each party has made, including income, inheritances, gifts, homemaking, and caregiving responsibilities. Both financial and non-financial contributions are considered valuable in family law settlements.
Future Needs Considerations
The court considers future needs, such as differences in earning capacity, health conditions, and caregiving responsibilities before deciding on a fair division of assets.
Notable Family Law Cases in 2024
Balancing Financial and Non-Financial Contributions
A recent case illustrates how the court balances financial and non-financial contributions. In Henson & Marlin (No 4) [2024] FedCFamC1F 713, the wife had been the primary carer for the children while the husband was the primary income earner. Despite prior financial agreements, the court ruled in her favour, awarding her 40% of the total asset pool to reflect her unpaid domestic contributions.
Superannuation in Property Settlements
Superannuation is often one of the largest assets a couple has, and it can be split between parties as part of the overall division. In Fagan & Fagan (No 2) [2024] FedCFamC1F 791, the court ordered an additional interim property distribution to ensure the financially disadvantaged spouse had security while waiting for final orders.
The Impact of Financial Abuse in Property Settlements
The Family Law Amendment Act 2024 has placed a stronger focus on the economic impact of family violence in property settlements. Previously, a spouse who was financially controlled or prevented from working might have struggled to prove their entitlement to a larger share of the asset pool.
In Garcia & Garcia [2024] FedCFamC1F 805, the wife demonstrated that her financial contributions were limited due to the husband’s coercive control. The court acknowledged the impact of financial abuse and awarded her an additional share of the assets to compensate for lost economic opportunities.
Important Deadlines for Property Settlements
It is important to note that property settlements are separate from divorce. If a couple was married, they must apply for property orders within 12 months of their divorce becoming final. If they were in a de facto relationship, they have two years from the date of separation to make a claim.
If these deadlines are missed, the party seeking a settlement must apply for special permission from the court to proceed, but this is not always granted.
Why Legal Advice is Essential
Navigating a property settlement can be overwhelming, particularly when there is uncertainty about entitlements. At Jameson Law, we understand the complexities of family law and are committed to helping clients achieve fair and equitable outcomes.
Whether negotiating a settlement, applying for financial orders, or protecting assets, having an experienced legal team makes all the difference. If you are going through a separation and need guidance on your property settlement, seeking legal advice early can help secure your financial future.
