Introduction
This is arguably the most often asked question we get as family lawyers. Unfortunately, there is no straightforward answer since while determining entitlements, there are numerous elements to consider.
In property settlement processes, the court has the authority to make any order it sees fit. However, the court will not make an order unless it is convinced that it is just and equitable in all circumstances.
- The financial contribution made by the parties (or on behalf of the parties or a child of the parties), whether directly or indirectly, to the purchase, conservation, or enhancement of the parties’ property shall be taken into account by the court when deciding what order to make.
- Contributions (other than monetary contributions) made by the parties (or on behalf of the parties or a child of the parties) to the acquisition, conservation, or enhancement of the parties’ property, whether directly or indirectly.
- A party’s contribution to the family’s and any children’s well-being.
- The impact of any proposed order on the parties’ earning ability.
- A party’s child support obligation is to provide or may be obligated to provide in the future to a child of the relationship.
What Else Will the Court Take into Consideration?
Insofar as they are relevant, the court will further consider the following factors:
- The parties’ ages and health conditions.
- The parties’ income, property, and financial resources, as well as their physical and mental capacities for meaningful employment.
- Whether either party has custody or control of a child of the marriage under the age of eighteen.
- The obligation of either party to assist another person.
- Eligibility for a pension, allowance, or benefit by either side.
- A reasonable level of living under all conditions.
- If either partner is cohabiting with another individual, the cohabitation’s financial circumstances.
- The terms of any order that has been placed or that is proposed to be placed.
- Any information or circumstance that, in the view of the court, is relevant to the case’s justice must be considered.
- The amount to which the provision of maintenance to the person whose maintenance is being considered would boost that party’s earning potential by allowing that party to enroll in the course of education or training, start a business, or otherwise earn an acceptable income.
- The impact of any order on a creditor’s capacity to collect their debt (so far as that effect is relevant).
- The amount that the party whose maintenance is being considered has contributed to the other party’s income, earning ability, property, and financial resources.
- The length of the marriage and the impact it has had on the earning capability of the party whose support is being considered.
- Whether a party wishes to continue to act as a parent.
Court’s Approach
The above was a summary of the issues as outlined in Sections 79(4) and 75 of the Family Law Act (2). Once the court is satisfied that a property adjustment order is just and equitable, the court conducts a four-step procedure:
- Step One
The court will determine the available property pool for distribution between the parties. To that end, the court will assess the parties’ assets, liabilities, and financial resources as of the hearing date.
- Step two
The court evaluates the parties’ contributions, as outlined in paragraphs (a) to (d) above (e).
- Step three
The court examines the parties’ future circumstances and needs, as well as the issues raised in the above paragraphs.
- Step Four
Consider the impact of the issues raised in steps two and three, as well as what a fair outcome would be given all of the facts and circumstances.
Conclusion
In conclusion, because there is no straightforward method for calculating entitlements, we, at Richardson Murray, recommend parties to get independent legal counsel from a competent solicitor. We also suggest that parties seek legal guidance as soon as possible so that they are fully informed before engaging in any discussions or negotiations.
So, in response to the question “Who gets what in a divorce in Australia,” we must say that it depends on the facts and circumstances of the relationship.
When you are looking for best family lawyers in Gold Coast, you surely can’t get past the Richardson Murray. With years of experience in legal practice and speciality of Australian Divorce Laws, Richardon Murray has scores of satisfied clients, and you can be the next one!
