Dividing property after separation: what‘s involved? Is there more to it than “It’s justice. It’s Law. It’s the Vibe.”

How do you divide the property after separation? What’s a fair outcome? Where do you begin and what are the issues you have to take into account?

Figuring out the next steps and thinking about how to get started can be an overwhelming task. We appreciate the anxiety involved in the decision-making process. But fear not! We can point you in the direction of a list of considerations and steps that can help you take that first step towards a resolution and your new life. 

Like all good lawyers, we are suckers for a step-by-step process to reaching resolutions. Which is why the four-step process the Court uses to assess and determine family law property matters is music to our ears! Even though there are a number of factors we consider in our holistic approach to property settlements, we still need to be able justify the end result within the context of the Family Law Act 1975 and the process that would be adopted by the Court if it were to determine your matter.  To give you a bit more of an understanding around that process, we list them out below:

1. Assessing what is included in the property pool that is available for division between the parties.
2. Looking at the contributions made by both parties prior to and during the relationship.
3. Weighing up any future needs of the parties.
4. Determining whether the final result is just and equitable.

Sounds simple – but it’s easier said than done.  There are numerous considerations within each of the above steps.  At the end of the day, the Court also has ultimate discretion in respect of how to weigh up each contribution, future need, and whether they consider the final result to be a just and equitable outcome in all the circumstances.

Not all hope is lost though! Here are a few tips and tricks to help you think about what is included in each of the above steps.

Step One – What’s included in your property pool?

You may be asking “what is a property pool?”

A property pool is a spreadsheet that lists out all of the assets, liabilities and financial resources held by you and your Ex.  This includes everything in your own names, anything held jointly between you or with a third party and anything you have may hold an interest. 

The list is much more comprehensive than you may think, however a good starting point includes the following:

1. Bank accounts and term deposits;
2. Real property, such as houses, land or apartments;
3. Motor vehicles including vintage or collectable vehicles, motorcycles, boats and caravans;
4. Businesses and corporate structures;
5. Shares and other investments;
6. Superannuation;
7. Liabilities such as credit cards, mortgages, personal loans, motor vehicle loans, and taxation debts;
8. Personal items and household items including any antiques or valuable items, furniture, artwork and jewellery;
9. Inheritances;
10. Gifts;
11. Trusts including discretionary trusts and testamentary trusts. 

The above is only a quick list to get you thinking about what to jot down as you contemplate what is available for division between you and your Ex. Be mindful that there are many other items not listed above that may be included in the property pool or excluded depending on the circumstances. 

Step Two – Contributions

In this stage, the Court will consider and weigh up all contributions that each party has made including the financial, non-financial and care contributions as follows:

1. Initial Contributions – what property did each of you have before you entered into the relationship?
2. Contributions during the relationship – what did each of you contribute financially to the relationship? Did either party make a non-financial contribution to the relationship and what was the benefit of this contribution? What home-maker or parenting contributions did each of you make during the relationship?
3. Contributions after the relationship – what has each contributed after separation, both financially, non-financially and as a homemaker or parent?

This is an investigative step where all possible contributions are raised and evaluated by the Court.

Step Three – Future Needs

In this stage, the Court will look at whether one party has greater future needs factors than the other which warrants any further adjustment to how the property pool is divided.  This is a broad step and can take into account a myriad of factors related to your situation including:

1. Income earning capacity and any disparity between each of your incomes.
2. Medical needs or a medical condition of either party and the impact this may have on either party’s earning capacity.
3. Whether a party’s ability to re-enter the workforce is hampered due to any caregiving responsibilities. 
4. Whether a party has re-partnered and has the benefit of sharing costs with their current partner.

Step Four – Is the result just and equitable?

After considering each of the above, we will work out how to divide the property pool.  There is no one size fits all rule. Despite popular belief, 50% is not the starting point and you aren’t entitled to 50% because you are in a de facto relationship or married.  If only it was that easy!  We use our experience and consider other family law cases determined by the Courts to assess what division of the property pool is just and equitable in the circumstances.  We know it feels a lot like “it’s the vibe” from ‘The Castle’, but we promise there is definitely skill involved and a method to the process. 

How do I get started?

The first step is working out the property pool because once you know what is actually available for division, you can start thinking about what you would like to retain or receive.  

Next, get legal advice from an expert family lawyer.  Even if you want to negotiate with your Ex firstly, it is a good idea to have an awareness of what a just and equitable outcome for your situation may look like if an agreement can’t be reached.  It also gives you some goals to post for your discussions with the other party. 

If you have any questions – reach out, give us a shout and we’re always available to help! We are always more than happy to take a phone call and talk things through with you so that you can get started on your way to clarity and certainty.

We offer a free 30-minute CLARITY CALL if you want some further guidance or support during your separation journey.  We would love to hear from you!

***Disclaimer***

This article is for general information purposes only and does not constitute legal advice or any other professional advice.