Is Equal Distribution of Marital Assets Fair? How Assets are Divided after Separation or Divorce in Australia
The division of assets after separation is a complex and sensitive issue that arises when a de facto relationship or marriage comes to an end. This process in Australian Family Law involves the separation of all assets and liabilities that have been accumulated during the relationship, and it is critical to ensure that this division is just and equitable for both parties.
While many people assume that an equal distribution of assets is always the fairest approach, the reality is that it is often more complicated than that.
In this article, Seitz & Pepper Family Lawyers Melbourne will explore the factors that the Court considers when assessing property settlement and why a 50/50 split may not always be the best option. We will also look at the future financial needs of each party and how they can impact the division of assets. Ultimately, the goal of this article is to provide a comprehensive understanding of how marital assets are divided. Our Family Law solicitors are ready to assist the reader to make informed decisions during this challenging time when searching for “the best Family Lawyer near me”.
Non-Financial Contributions
The Family Law Act 1975 (Cth) takes into consideration many factors when assessing what is just and equitable in a Family Law property settlement.
When assessing contributions, the Court considers not only financial contributions but also non-financial contributions. Non-financial contributions refer to the domestic tasks during the marriage, including childcare, cleaning, paying regular bills, and household maintenance and improvements.
The Court also takes into account the time parties spent out of paid work during the marriage to raise and care for the children of the marriage. These particular variables are also assessed when considering a party’s future financial needs, because the primary caregiver of the children of the relationship has often spent an extended period of time out of the workforce, thereby increasing their financial vulnerability post-separation and divorce.
Financial Contributions
Financial contributions are also assessed, including in circumstances where one party has brought significant financial assets to the relationship. Financial contributions include direct or non-direct contributions to the acquisition, conservation, or improvement of marital property of the parties, including assets that are held jointly or solely, and can include real estate, cars, income, gifts, inheritances, stock portfolios, redundancy packages, injury compensation, and more.
It is important to note that all debts and liabilities held by the parties may be taken into account when assessing the overall asset pool, including mortgages, auto finance, personal loans, and credit card debt. If one party has needlessly accrued substantial debt and negatively impacted the marital asset pool needlessly, this may be assessed as wastage and credited back to the other party.
Future Financial Needs
In determining the division of marital assets in a financial property settlement, the parties’ future financial needs must be taken into consideration. The key factors that determine the future financial needs of a party are detailed below.
Age
The age of the parties is a significant factor that the Court considers when determining future financial needs. Older parties may require a larger portion of the asset pool to be awarded to them as they have fewer opportunities to generate future income.
Health
Health is a critical factor in determining future financial needs. If a party has health concerns, this may impact their ability to work and earn an income. They may require a larger portion of the asset pool to compensate for their reduced earning capacity.
Income and Financial Resources of a Party
The Court takes into account the income and financial resources of the parties to determine their future financial needs. If one party has significantly higher earning capacity than the other, the Court may award a larger portion of the asset pool to the party with the lower earning capacity.
Care of Minor Children
The care of minor children is a crucial factor in determining the division of marital assets. The primary care of the children is the most common and significant factor that will cause the division of marital property to deviate from an equal split. This is based upon the premise that the primary caregiver for the children will have limited employment opportunities when compared to the party without primary care. Of course, this adjustment will vary when taking into consideration the income earning potential of the parties and the ages and needs of the children.
Responsibilities of a Party to Care for Another Person
If a party has the responsibility to care for another person, such as a parent or grandparent, this may impact their ability to work and earn an income. They may require a larger portion of the asset pool to compensate for their reduced earning capacity.
Length of the Relationship
The length of the relationship is another important factor that is considered when dividing marital assets. In general, the longer the relationship, the greater the financial settlement is likely to be. This is because longer relationships typically involve greater financial interdependence between the parties, including joint ownership of property and joint financial accounts.
For example, if a couple was married for 20 years and owned a home together, the Court may award a greater percentage of the marital assets to the party who contributed to the mortgage payments and home maintenance over the course of the marriage.
Wastage
Wastage refers to the unnecessary dissipation of marital assets by one party. This can include excessive spending on non-essential items, gambling, or other reckless behaviour that has a negative impact on the marital asset pool. When wastage is identified, the Court may adjust the financial settlement in favour of the party who did not engage in wasteful behaviour.
For example, if one party spent a significant amount of money on gambling during the marriage, the Court may credit back the amount of money that was lost to the other party when dividing the marital assets.
Other Considerations
In addition to the factors listed above, there are a number of other considerations that may impact the division of marital assets. For example, if one party received an inheritance or a gift during the marriage, the Court may consider whether that asset should be included in the marital asset pool.
Similarly, if one party brought significant assets into the marriage, such as a large inheritance or a business, the Court may consider whether those assets should be excluded from the marital asset pool.
Conclusion
In conclusion, even for the best Family Lawyers, the division of marital assets is a complex process that requires careful consideration of all factors to ensure a just and equitable outcome for both parties. While it is easy to assume that an equal distribution of assets is always the fairest approach, this is not necessarily the case. Instead, the Court shall consider a range of factors, including contributions and future financial needs, when making decisions about property settlement.
Understanding these factors can help individuals navigate the process with confidence and make informed decisions about the division of assets. Ultimately, seeking Family Law advice and working collaboratively with a former partner can help to ensure that the property settlement is fair and reasonable, and that both parties can move forward with financial security and peace of mind.
