When deciding who gets what in a divorce or separation in Australia, it is never as simple as “I bought this so I can keep this”. When ending a relationship, especially if it is a long-term relationship, people have different needs and have made different personal sacrifices for the sake of the relationship.
For example, if one person sacrifices their career in order to look after the home and children, when the relationship ends they will be in a difficult situation with no income.
If it isn’t as easy as simply keeping what each person owns, how do you split your assets and liabilities in a property settlement? Well, it depends on each individual’s circumstance, as well as the process for how you separate. In this article, we discuss what the different processes are, as well as how the court determines who gets what.
The grounds for divorce
According to the courts, a divorce can only happen if it is: “an irretrievable breakdown of marriage, evidenced by a twelve-month separation immediately preceding the date of the filing of an application for divorce”. As such, the court examines the grounds for divorce on two areas:
- The marriage has broken down for a continuous 12-month period.
- It is not reasonably likely that the parties will get back together.
Some of the assets and liabilities considered in a divorce
There are many assets and liabilities considered for a divorce in Australia, and you should contact a lawyer for a thorough list of what yours would look like. Some of the most common assets and liabilities include:
- Family home/other real estate
- Portfolios (shares, crypto etc)
- Mutual funds and bonds
- Superannuation accounts
- Family trusts
- Boats, cars and other vehicles
- Collectables and jewellery
- Household items like furniture
- Business interests
- Mortgages on your family home and other real estate
- Personal loans
- Car finance
- Business loans
- Hire-purchase agreements
4 Different ways you can divide your assets
There are four different ways that you are able to split your assets and liabilities when going through a divorce. The one which you should use depends on how amicably you and your ex-partner separate. Before you start asking yourself; “what does my wife get after divorce?” you should contact a family lawyer, and discuss these four options so that you and your ex-partner can be as comfortable as possible:
- A non-legal arrangement
This is the way to separate and split your assets if you and your ex-partner split amicably, otherwise known as a no fault divorce in Australia. In a non-legal arrangement you and your partner will be able to sit down and work out the best way to separate without any legal documentation.
- A binding financial agreement
A binding financial agreement (BFA) is a legal document for divorce settlement in Australia that is enforceable in court, and can be entered into before, during, or after the relationship. It is a kind of contract that outlines how things are split if the relationship ends, and sets the guidelines moving forward. If entered before marriage it is called a prenup in Australia.
- Consent orders
Consent orders are when you and your ex-partner seek legal counsel to draft and plan how the division of property will go ahead. Once both parties are happy, the orders are filed to the court. If you are drafting consent orders you will want to make sure you have a family lawyer that is looking out for your best interests.
Litigation is for when you and your partner do not split amicably, and it is now up to the family court to determine how assets and liabilities will be split. This is the longest and most costly way to separate, and should be avoided if possible. However, if you have to litigate you absolutely must make sure that you have a lawyer that will make the process as stress-free as possible.
4 Things the court considers when splitting assets
Are assets split 50/50 in divorce in Australia? Well that depends entirely on four different factors that the courts use to determine what is “just and equitable”. So, if you’re wondering; “what is my wife entitled to in a divorce in Australia?” or; “what am I entitled to in a separation?” it’s a good idea to be aware of how your property will be split:
- The size of the shared property pool
What is in the property pool, how big is the property pool, and what is the value of everything in the property pool? The more comprehensive you are in valuing and disclosing everything to the court, the better you will be.
- Identify the contributions each person has made
What are the contributions each person has made to the relationship? This doesn’t just mean who makes the most money, the court also evaluates who has been giving care to the home and children, since if they are stuck with the kids they would be unable to earn money.
- Identify the needs of each person
If you’re wondering; “do I have to support my wife during separation in Australia?” don’t worry, because the court will do it for you. When dividing assets the court will determine who needs what, for example, if your partner takes more custody of the kids they will need more support, and vice-versa.
- Determine what is just and equitable
Once the court has evaluated everything, it will determine the result on one final check, “is it just and equitable?” If it is, then the court will make the decision final.
10 Things to do when splitting assets after separation
Don’t worry about “can my ex wife claim money after divorce in Australia?” Try and have a little faith in your lawyer. Instead, go through this checklist and try to involve your ex-partner, so you can stay as calm as possible.
- Set goals
- Know the value of what’s in the shared property pool
- Set a timeline and stick to it
- Stay self-determined
- Seek external advice
- Make time for each other
- Don’t take a position
- Listen to your ex-partner
- Consider all the options and be unbiased
- Focus on the future
Where to get external advice and help during your separation
Don’t let Google search stand as your lawyer. There is a wealth of information out there and it’s a good place to start, but don’t let that “how to get a divorce in Australia” article be your decision maker. Let legal professionals sort your divorce and help you with your finances.
So how do you find a lawyer you can trust and rely on? With so many law firms in Perth, it can be hard to find one who will understand and listen to your situation.
Savannah Legal offers a free 1 hour consultation and we take the time to understand your situation, concerns and needs, before providing you with a legal plan outlining your options. Our goal is to give you affordable legal advice while lifting a burden off your shoulders. Book your free consultation today.
If you are wanting a financial separation calculator, a divorce asset split calculator, divorce statistics in Australia, or a single parenting payment calculator, you’re probably not going to find one here. But with Savannah Legal, you will find qualified lawyers that can help you work it out!