This is the part two of our three-part series on Property Settlement and the consequences of a breakup. Part one was released last week and dealt with the section 79 contributions of the parties. Today, we talk about fairness factors and the future needs under section 75 (2) of the Family Law Act 1975 (Cth).
What is fair is often a matter of interpretation, and you need to look at it from both parties’ points of view.
Family Law property settlements involve:
- An assessment of the parties’ financial and non-financial contributions, as well as their contributions as a parent and/or homemaker.
- Consideration of the parties’ future needs, if relevant.
- “Full and frank” disclosure of the parties’ assets and liabilities.
Section 75(2) of the Family Law Act 1975 (Cth) lists various “matters to be taken into consideration in relation to spousal maintenance” in a marriage. Section 90SF(3) contains equivalent future needs factors for de facto relationships.
These matters, if relevant, must be considered when making property settlement orders. Some of these future needs factors include, in relation to both parties:
- Age and health
- Income, property and financial resources, and a party’s capacity for employment
- Care and control of children
- Financial commitments and responsibilities to support persons
- Pension and superannuation entitlements
- The effect of the duration
- Receipt or payment of child support
- Any financial agreements previously entered between the parties
Age and health, parental responsibilities and the duration of the marriage/de facto relationship are often relevant. In a relationship with a large asset pool, a party’s standard-of-living may be relevant.
The overriding duty of the court is to come up with a just and equitable property split, taking into account the circumstances of all parties. There is no formula. You should always obtain independent advice as to what the likely split will be in the circumstances, taking into account all the assets of the marriage.
Next week we will talk about the assets and the necessity to disclose all of the assets and liabilities of the parties.
Get Expert Advice
If you are currently going through a separation or divorce, or if you need legal advice about a property settlement, then contact Greg Martin or Jacqueline Wainwright on (02) 9687 9322.