Property Division in Divorce

Date: July 10, 2015
Author: admin
Posted in: Insights


What’s mine is mine and what’s yours is yours is not a concept that applies in Family Law. You might come into a relationship with significant financial resources or special skills, but that may not be enough to persuade the Court that you should walk away with the lion’s share of the asset pie.

The Court will take into account the following factors in making their decision:

Determine what is in the asset pool: Property can include the parties’ joint property, their individual property (acquired before, during, or after the marriage), and even property held under a another person’s name, or by a business or trust, provided the Court believes the parties have a claim or interest in that property. The total sum of the property is referred to as the “asset pool” that will then be divided between the parties.

Just and equitable requirement: The Court will then consider a threshold question of whether it is just and equitable to alter the parties’ interests in their property, or whether the assets should remain with whom they currently lie without the need for court intervention, having regard to:

  • the circumstances of the particular case;
  • the need to protect and preserve the institution of marriage; and
  • any other circumstance.
  • If the Court finds that it is not just and equitable to alter the parties interests, the application for property settlement will fail. Otherwise their discretion is enlivened and they will then consider the next two steps.
  • The parties’ contributions: Including financial and non-financial, for example, income, what assets the parties brought into the marriage, homemaker, and parenting contributions.

Prospective factors: Finally, the court considers all future factors such as age, health, earning capacity, future needs, and financial resources, before coming to a decision on how to split the parties’ assets, and more often than not adopting the ‘clean break principle’, limiting the parties contact and obligation to one another in the future.


What about special skills, and a financially successful spouse?

The Full Court of the Family Court’s decision in Hoffman & Hoffman has now essentially marked the end to ‘special contributions’. Deputy Chief Justice John Faulks (with Justice Peter Murphy and Justice Garry Watts) stated:
“…there is no principle or guideline … that renders the direct contribution of income or capital more important – or ‘special’ – when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family”

Deputy Chief Justice Faulks went on to say:

“It is almost impossible to determine questions such as: Was he a good businessman/artist/surgeon or just lucky? Was she a good cook/housekeeper/entertainer or just an attractive ­personality?”

Warlows Legal can assist parties in navigating through property settlement issues and provide parties with realistic and sensible advice on achieving the best possible outcome including settlement entitlements, alternative dispute resolution, and parties’ prospects of success.


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