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The above is probably the most frequently asked question that we face as family lawyers. Unfortunately, there is no simple response, as there are many factors that we need to consider, when determining entitlements.
In property settlement proceedings, the court may make such order as it considers appropriate. However, the court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. In considering what order to make the court will take into account, inter alia:
- The financial contribution made by the parties (or on behalf of the parties or a child of the parties), whether directly or indirectly, to the acquisition, conservation, or improvement of the property of the parties.
- The contributions (other than financial contribution) made by the parties (or on behalf of the parties or a child of the parties), whether directly or indirectly, to the acquisition, conservation, or improvement of the property of the parties.
- The contribution made by a party to the welfare of the family and any children.
- The effect of any proposed order upon the earning capacity of the parties.
- The child support that a party has provided, is to provide or might be liable to provide in the future to a child of the relationship.
The court will also take into account the following matters, so far as they are relevant:
- The age and state of health of the parties.
- The income, property and financial resources of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
- Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years.
- The commitments of each of the parties that are necessary to enable the party to support:
- Himself or herself; and
- A child or another person that the party has a duty to maintain;
- The responsibilities of either party to support any other person.
- Eligibility of either party to a pension, allowance, or benefit.
- A standard of living that in all the circumstances is reasonable.
- The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income.
- The effect of any order on the ability of a creditor to recover their debt (so far as that effect is relevant).
- The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.
- The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
- The need to protect a party who wishes to continue that party’s role as a parent.
- If either party is co-habiting with another person – the financial circumstances relating to the cohabitation.
- The terms of any order made or proposed to be made.
- Any fact or circumstances, which is the opinion of the court, the justice of the case requires to be taken into account.
The above is a summary of those matters as set out in the legislation in the Family Law Act at Sections 79(4) and 75(2).
One the court is satisfied that it is just and equitable for there to be a property adjustment order then the court follows a four-step approach:
Step One: The court will identify the property pool which is available for distribution between the parties. To this end the court will value the assets, liabilities and financial resources of the parties as at the date of the hearing.
Step Two: The court considers the contributions made by the parties, as set out above in paragraphs (a) to (e).
Step Three: The court considers the future circumstances and needs of the parties and those matters set out above in paragraphs (i) to (xv).
Step Four: Consider the effect of those matters in steps two and three, and what in all the facts and circumstances is a fair outcome.
In conclusion, there is no simple formula that can be applied to calculate entitlements and as such we recommend that parties seek independent legal advice from a practicing solicitor. We further recommend that parties seek advice early, so that they are fully informed when having any discussions or negotiations.
So, to answer the question “Divorce Australia who gets what”, we must reply, it depends on the facts and circumstances of the relationship. Only once we are aware of all the facts can we give proper advice.
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