Guardian Family Law

Guardian Family Law
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Property Matters

How Guardian Family Law
can assist you in your
property matter

One of the most important parts of the divorce process is definitely the asset and property division. This is a major challenge because it’s really difficult to identify the best way to split assets accurately. Thankfully, the court has a very specific approach when it comes to dealing with property/asset division.

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Calculating the Net Position
of the Parties

During this process, the court will consider all the financial resources, liabilities and pool of assets. What’s important to keep in mind is that they consider all the possessions and liabilities at the time of the hearing, not at the separation date. These can include anything from real property, motor vehicles, superannuation to businesses, investments, real estate and so on.

Understanding the contributions made
by each one of the parties

The court will consider every contribution made by or on behalf of each one of the parties. These can be financial, non-financial, or even child raising/homemaker contributions. There’s no presumption of equality when assessing these contributions, and these are also relative to the length of the relationship, but also have their own significance and timing.

Merely because one party may be the financial breadwinner of the family does not necessarily mean that they will have a greater entitlement to the matrimonial property pool. One party’s financial contributions can be equal to the parent/homemaker contributions of the other party. Additionally, there are a number of additional discretionary considerations available to the Court, including the existence and significane of family violence and the alleged wastage of assets. These additional considerations can further shift the balance of contributions too. 

In addition, the Court may consider the effort and skill associated with each respective contribution. An inheritance or windfall received by a party throughout the course of a relationship may be chatacterised as a joint contribution. Similarly, one received outside of the relationship may not be assigned the same weight as a contribution that is obtained based on the individual effort, skill, or expertise of a party to the relationship.

Studying the future
needs of each party

Another thing that the Court focuses on is whether one of the parties may require greater assistance or financial compensation in the future. The Court will often find that a just and equitable division of matrimonial asset will require one party to receive a greater adjustment of assets to compensate for their on lack of earning capacity, work experience, health, age and so on. Other factors such as financial resources, health problems, and childcare can also affect the court’s decision. 

Since the court is objective in such a situation, they will determine which one of the parties actually needs more assistance and support based on their future. Understanding and assessing everything is very important, and that’s extremely important to think about before entering into any property settlement discussions.

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Making sure that the Order is equitable and fair

Finally, the Court must ensure that the final outcome is fair based on all of the available information. With so many competing positions in relation to complex property issues, it can be very difficult for the Court to make a final decision in relation to the division of assets. Ultimately, any decision made by the Court must be fair and equitable.

While applying the 4 steps listed above, the court will consider all theobjective facts that is relevant, along with the discretionary and further considerations that are unique to each matter. Even if there are similar cases, there is no guarantee that the Court will apply the same reasoning and considerations in reaching a final outcome. The 4-step approach presented here is very useful to practitioners and litigants alike as it provides clarification in relation to each party’s contributions and entitlements. It is always useful to seek professional advice from practitioners who have greater experience and a deeper understanding of the Court process and nuances associated with litigation.

In every determinaiton of the division of property and assets, Australian courts will always rely upon the method outlined above. 

As you can imagine, it is often very difficult to try and quantify all the assets and then split them equally. Most of the time, the equal division of assets will not be practicable or appropriate since there are so many different factors to be taken into consideration.

It is important to remember that there is no set formula that may be relied upon in calculating the division of assets and it is often possible that the spouse who had a higher financial contribution may ultimately receive a smaller share of the matrimonial asset pool given that the other party may have made greater contributions to the homemaker/child role. 

That is why it is important to speak to a qualified solicitor and seeking advice in relation to your entitlements before seeking to finalise the division of your assets!

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