“I want half” – common myth that assets split equally in family law property settlement
There appears to be a misconception in the community that when a marriage or de facto relationship ends, the assets and liabilities of the parties will always be split equally between them. As a family lawyer, I have had many clients come to me and say: “I want half” or “I know he/she is going to get half”.
While it may be the case that in some property divisions. each party receives an amount equal to half the net assets, that only occurs when it is “just and equitable” for there to be an equal distribution.
So how does the Family Court or Federal Circuit Court determine what is a “just and equitable” division of property? Courts look at the circumstances of the relationship and the contributions of the parties to determine first, whether it is appropriate to make any adjustment to property ownership at all and, only if the answer is yes, secondly, what that adjustment should be.
“We have been together for more than two years – will the court always make a property adjustment order?”
There have been a number of cases recently, including Chancellor v McCoy (27 year de facto relationship) and Fielding v Nichol (12 year de facto relationship) where the courts have determined that, because the parties kept their property and finances separate throughout the relationship, it was not appropriate to make any adjustments at all and the parties each kept what they currently had, even though it wasn’t an equal amount.
However, if there have been contributions by both parties to jointly owned property or to the property of one of parties, or contributions to the care and welfare of children of the relationship, the court will usually consider it appropriate to make a property adjustment order where the current assets of each party do not reflect their contributions.
“We’ve been together for more than two years – will I get half?”
The answer to this question is “maybe”. To determine whether it is “just and equitable” for the net assets to be split equally or in some other proportion between the parties to the relationship, the courts will consider, among other things:
- What assets, liabilities and financial resources the parties have individually and together
- Duration of the marriage/relationship
- Financial contributions of the parties at the commencement of the relationship
- Financial contributions of the parties throughout the relationship
- Non-financial contributions to the acquisition and improvement of property during the relationship
- Any inheritances or personal injury compensation settlements received during the relationship and when they were received
- Contributions as parent and homemaker throughout the relationship and since separation
- Whether either party has the ongoing care of a child of the relationship
- Whether either party has any health or other matters that will affect their ability to work
Only after examining these factors can a lawyer give a client advice on what they can expect to receive in a property settlement.
Accordingly, if you find yourself in the situation where you have separated or are considering separating and want to know what you (or the other person) are really entitled to, you should contact an experienced family law lawyer for advice.
For more information, please see Is a de facto relationship the same as a marriage? and De facto property settlement can be as complex as a marriage break up.