After the breakdown of a marriage or relationship it is appropriate to resolve “who gets what”. This is known as financial property settlement. The family lawyers at our firm have a wealth of experience in this area of law. We have prepared questions and answers to some of the common questions we receive.

I am looking at a property settlement. How is the property split?

Depending on the length and dynamics of the relationship, as well as the way that the parties have arranged their finances, this can be relatively straight forward exercise or involve complex negotiations.

As a general rule both financial and non-financial contributions are taken into account when determining property settlement. It is important to realise that you may not be aware of some of the things that can be taken into account under the Family Law Act. These include personal injury compensation payments, both parties’ superannuation, future needs, the future earning capacity of each party, the health of the children and both parties as well as financial resources such as expected future inheritances.

Remember, even if you are negotiating a settlement yourself, in order to make an informed decision, before you sign anything, you should find out what your entitlements at law are.

We have come to an agreement ourselves. How can we formalise it?

Financial agreements can be classified broadly into three categories:
1. S90B Binding Financial Agreement (commonly referred to as a pre-nuptual agreement (entered into before or during the relationship);
2. S90C Binding Financial Agreement during marriage
3. s90D Binding Financial Agreement after divorce.

If you have come to an agreement without legal advice, you should obtain advice before you sign anything. We can provide you with the advice needed to make an informed decision before you enter into a binding agreement.

We can also assist by drafting the agreement for you to ensure that it covers all the legal requirements that you may not have thought of.

Will my domestic tasks be taken into account?

Property settlements tend to be a ‘balancing’ act when it comes to weighing up the financial and non-financial contributions (such as contributions to the welfare of the family) made by each party. You should not feel at a disadvantage because your relationship was structured so that you spent time out of the paid workforce and instead contributed in a non-financial manner to the relationship.

Property division does not just take into account the financial contributions made by each party. The Family Law Act recognises that relationships are often structured so that one party takes time out of the paid workforce in order to care for children. Therefore, the Family Law Act takes into account non-financial contributions such as child-raising and domestic tasks. Generally these contributions are considered equal to the financial contributions.

Even in situations where both parties in the paid workforce, it is not uncommon for one party to undertake the majority of the domestic tasks. This too may be taken into account in property settlements.

I brought significant property into the relationship. Can my spouse claim any of it?

Remember that any claim to assets of the relationship need to be grounded in ‘contributions’, property is not simply divided by virtue of the fact that two people are married.

The effect of this is that typically in short marriages, each party will take out what they came to the relationship with. In longer relationships, the contributions made by each party throughout the relationship are typically seen to reduce the significance of financial contribution made at the beginning of the relationship by each party. This is because the property brought to the relationship is, in most cases, seen to ‘meld’ into the marital asset pool which is being contributed to both financially and non-financially by the parties.

Technically, it could be seen that after the break down of a long relationship that the other spouse may have a claim against property brought into the relationship.

The other spouse has accumulated assets post separation. Can I claim any of it?

Again, an argument needs to be made that you have contributed to the asset in some way. Where the assets have been purchased using assets of the marriage, this is likely to be much easier than a situation where several years after separation one spouse accumulates property from income generated post separation.

Furthermore, where a matter ends up before the court for determination, the court looks at the financial position of the parties at the time of hearing. This can be several years after separation.

It is also important to realise that other considerations such as future needs, income earning capacity as well as maintenance considerations can all be taken into account in determining property settlement.

What else is taken into consideration for a property settlement?

Other considerations such as future needs, income earning capacity as well as maintenance considerations can all be taken into account in determining property settlement.

Author Bio: Elizabeth Lane has many years experience working with the Family Lawyers Wollongong Prime Lawyers Wollongong.

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