Is it true that property is automatically divided 50/50 after separation or divorce?
No, Australian family law does not presume that property will be divided equally following separation. The Family Court assesses each case individually, considering factors such as financial and non-financial contributions, homemaking and parenting roles, and the future needs of each party. The outcome depends on the specific circumstances of the relationship, which is why obtaining tailored legal advice early is important to avoid relying on common misconceptions.
Most couples that separate will own property, either individually or jointly, and the division of that property is an issue that should be dealt with as soon as possible after separation.
You may find, as a newly separated person, that many people offer you their opinions and advice based on their experiences of separation and property division. Information gleaned from these sources can be confusing and inaccurate. This type of information can contribute to your stress, and may lead you to have expectations that are simply not based in law – in other words, false expectations.
The bottom line is – there is no legal presumption that assets should be or will be divided on a 50/50 basis. The Family Court has full discretion to make a decision based on the individual facts of each situation.
Many factors are taken into account under the legislation to determine who should get what property. There is no set formula nor any automatic right to a certain percentage of the assets. Each case is unique and will be determined on its own facts.
Some of the factors will be taken into account in a property settlement include the contributions each party has made to the assets. This includes financial contributions as well as non-financial contributions (such as assisting in any renovations or maintenance), and homemaking and parenting contributions. No one sort of contribution is more important than the others.
Generally, if a couple have acquired all their assets together and made equal financial contributions to those assets, contributions may be assessed as equal. Alternatively, if, for example, the husband had been the primary breadwinner for the family while the wife cared full time for the children, again, contributions may be assessed as equal.
The future needs of each party is a further factor to be considered and may mean that a percentage adjustment in favour of one party is appropriate. Future needs factors can include caring for children, the parties’ income earning capacities, their ages and any health issues and each party’s financial resources (including superannuation).
You should always obtain expert family law advice as soon as possible after separation. Your family lawyer will be able to provide you with independent legal advice about asset division based on the individual circumstances of your case.
If you would like further information in relation to this matter or other legal matters please contact our office at reception@hhg.com.au or call us on 1800 609 945.