Following the breakdown of a marriage or de facto relationship, it is common for
separated parties to be unsure and therefore anxious about their entitlements in a
property settlement and the assets they are likely to retain.
This is only natural given that family law is a complicated and emotional area of law which is often poorly understood.
Unfortunately this is reflected in a great quantity of inaccurate statements often regarded as fact by those in the community.
Automatic entitlement – a popular myth
Contrary to popular belief, there is no presumption that assets should be divided 50/50,
60/40 or in any other subjective proportion. Therefore, there is no automatic entitlement
in property matters.
People often receive “advice” from well-meaning friends or family as a result of their own
experiences, this advice is often misleading and can be unhelpful when it creates a false
Each person’s situation is different and should be carefully assessed by a family lawyer
qualified to give the right advice.
No two cases are decided the same and there is no presumption of any kind in relation
to a financial settlement when it comes to percentage entitlements. It is important to
realise that one person’s settlement will probably be different from others you may have
Factors to be taken into account
The factors which must be taken into account when the Family Law Courts consider how
property is to be divided is set out in the Family Law Act.
A lawyer practicing in family law will know exactly what is taken into consideration by the
Court when providing detailed and specific advice to clients. There is no universal
equation applied, property settlement is based on all of the information provided and the
discretion Court in deciding the matter.
To decide how to distribute the assets the Family Court will normally take into account
• The current value of the assets and liabilities. The court will require all assets and
liabilities to be identified to establish a ‘net asset pool’. This includes
superannuation entitlements, as well as assets held personally, in partnership, by
trusts, or companies.
• The direct financial contributions made by each person to the acquisition of
assets or the preservation improvement or maintenance of those asset, this will
include assets owned at the commencement of the relationship.
• The indirect financial contributions made by each person in the relationship, for
example, the giving up of a career to allow the other person to further their own
• The non-financial contributions by each person, like caring for children, being the
homemaker and maintaining or improving the assets by personal exertion such
as individual efforts in renovations that increase the value of an asset.
• Identifying the future needs of the parties, for example, age, health, financial
resources, superannuation, care of children and income earning capacity.
After considering all of the above the Court will consider whether any proposed property
settlement is ‘just and equitable’ in the circumstances.
No particular factor is given priority over another, meaning that someone who is the sole
income earner will not necessarily be entitled to a greater financial settlement than the
other person who was a stay at home parent to the children of the relationship.
It is important to remember that there is no presumption of equality (like a 50/50 split) as
a starting point in respect of contributions and that each matter will be decided upon the
particular circumstances of that case.
The Family Court has broad powers to make Orders for a just and equitable division of
It is important for anyone considering separating from their spouse, or who has already
separated, to obtain independent legal advice from experienced family law solicitors
about their likely property settlement entitlements.
Mr Raniga has been practicing Family Law for over 30 years and has received
numerous glowing testimonials from satisfied clients. A selection of these testimonials
are available on our website.
If you would like advice, guidance or assistance about property settlement entitlements
following the breakdown of a marriage or relationship, contact us on 03 9387 2424 or
email firstname.lastname@example.org today and see how we can help.