A question I often hear from my family mediation clients is “what am I entitled to in a separation?”.
Here’s some background about entitlements to property distribution upon separation in Australia.
3 Main Areas Of Entitlements In A Divorce/Separation
If you and your ex=partner have a Binding Financial Agreement (BFA), it’s simply a matter of complying with its terms.
If no BFA exists, you may have to enter into negotiations with your ex to reach an amicable settlement, either directly by yourselves, by utilising family mediation or by an Application to the Family Court.
What Factors Do The Family Court Consider When Deciding On Fair Division Of Property?
Separating couples are strongly urged to reach an amicable agreement when deciding on how to divide their property, thus saving the unnecessary costs of going through the Family Court. The more you can agree on the less you’ll have to argue about in Family Court.
The Family Law Act sets out the basis upon which property might be distributed after separation. This is a complex area and you should consider obtaining expert family law advice to make sure all of the factors that may be relevant in your case are properly considered and taken into account.
The general bases upon which the Family Law considers property distribution are set out in Part 8 of the Family Law Act and include:
- The parties’ various contributions (both financial and non-financial) at the beginning, during a relationship and after separation;
- Whether one or other party might be entitled to some “compensation” for a whole range opf factors set out in Section 75(2) of the Family Law Act – often called “future needs” factors, which might include:
- Income earning capacity;
- Age and health of the parties;
- Responsibilities for kids under 18 years old;
- The length of the relationship;
- Child support; and
- A whole lot of other factors including “anything the Cpourt mught consider to be relevant”
- And the law then simply requires that whatever the proposed distribution might be is just and equitable.
Each separation or divorce case has its own set of circumstances; no two cases are exactly the same.
What Assets Need To Be Included When Dividing Property?
All assets and liabilities of the parties, irrespective of in whose name they might be registered, form part of the asset pool. This broad definition would include the family home and any other real estate, bank accounts, investments, shares, vehicles, businesses, superannuation entitlements, household goods and other valuables. Liabilities would include mortgages, personal loans and credit card debts.
The asset and liability pool has to be established before a split can be arranged – and it is the pool at the time of settlement that is relevant: you can’t split up something that may have been in existence some time ago (i.e. at the time of separation) if it has changed in the time that has passed.
Spousal maintenance is considered to be part of property settlement and is a whole area to be considered separately – and, again, with the benefit of qualified legal advice. It may be relevant in some cases and in other it is not. Essentially a party would have to demonstrate their need for ongoing periodic financial support, the fact that the other party has the capacity to meet some financial support and the fact that it would otherwise be proper to do so. Legal advice is a must.
How To Work Out Child Support
When it comes to child support, the Australian system has a formulaic approach which can be calculated from the Child Support Agency’s website. Factors that will be relevant are the amount of time the children spend with each parent, the parents’ respective incomes and, to a certain extent, the children’s needs based on their ages. A quick call to the Child Support Agency will put you in the picture.
Want to discuss your own separation circumstances? Get in touch with Ian Shann today for a confidential discussion about your separation and divorce.
As a specialist in family mediation in Perth, he can help you and your ex work out an amicable settlement for your separation and divorce.