What does the court look at in determining a division of property between husband and wife or partners?
The Court needs to determine the net asset pool of the parties. These are the assets less liabilities acquired by the parties, before, during and after separation. In looking at the net asset pool the Court will also consider the financial resources over which a party has influence, control or potential entitlement. Determining the net asset pool can often be quite a difficult and complicated matter.
The Court will look at all contributions made by the parties to the relationship. These are initial contributions (assets acquired and attained before the commencement of the relationship) and contributions made by either party during the relationship up until the time of determination. The Court will look at all financial, non-financial direct and indirect contributions.
The Court will then consider what is known as the 75(2) factors which are the future needs of parties such as age and health, earning capacity of either party, the property and assets of each party, the parenting responsibilities of either party and if either or both parties have entered into a new relationship.
The Court will then look at the practical effect of a property settlement on a case by case basis to see whether it is “just and equitable” to both parties. Generally superannuation is dealt with separately to property orders however the Court is likely to take into account these entitlements when making a decision. The Court, in certain circumstances may make a superannuation splitting order, by which a superannuation payment is split, with an allocation to the non-holding party. Splitting does not convert the superannuation to cash. It is still subject to superannuation laws.
Is there an alternative to going to Court?
In the event that you and your partner reach an agreement on issues of property and/or spousal maintenance you may enter into a Binding Financial Agreement. This will enable you to have a division of property between you and your partner. There are different types of Binding Financial Agreements under the Family Law Act 1975. Also if you are able to reach an agreement with your partner then Orders can be made by the Court consentually (by consent) and you will not need to appear before the Court.