Division of Property (Matrimonial/De Facto)

A divorce will not automatically solve issues relating to property or shared assets. When parties separate after a relationship of many years, the law requires a fair and equitable division of the various assets they have accumulated.

Whether a couple has accumulated an asset pool of tens of millions of dollars or a few several hundred thousand dollars, it represents what the parties have worked hard sometimes over many years to obtain, and on which they might rely for their future financial wellbeing.

What is the method the court uses to divide property between separated couples?

No person wishes to see their hard-earned property be diminished as it is split with a former partner. Section 79 of the Family Law Act 1975 provides a very well-established procedure and set of principles which are used to determine:

  • What constitutes the asset pool for division between the parties;
  • How to assess the contributions by each of the parties to that asset pool;
  • What adjustments must be made to the assessment of contributions, based on the parties’ future needs;
  • Whether it is just and equitable to make an order for division (Section 75(2))

What are some common issues I may encounter along the way?

During the process of working through the above questions to resolve a financial dispute, parties may encounter any of the following challenges:

  • Whether a business should be valued and if so, how
  • How to determine if property is being hidden by one party and if so how to ensure that property is included within the asset pool
  • Whether any injunctions need to be issued by the court to protect property from being dissipated or removed from the asset pool
  • How mortgage payments need to be paid until the matter has been finalised
  • Which party can or should remain living in the matrimonial home until the parties have reached a final agreement, or until trial
  • How to assess the health concerns of either party, and whether that party should receive more of the asset pool as a result of any health challenges;
  • How to determine a party’s true earning potential if that party chooses to work less hours, when they are able to work more
  • Whether the home should be transferred from one party to the other, or if it should be sold.

These and many more are common issues arise as a matter progresses towards a resolution. The sooner these issues are identified and resolved, the sooner the entire matter can progress towards settlement.

Our solicitors have years of experience in dealing with these challenges, and they will be able to provide you with the insight and guidance you need to move forward.

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