Once a relationship breaks down, the parties tend to go into battle mode in order to protect their interests. As dealing with a relationship breakdown is such a private matter, most people tend to confide in their closest friends and relatives. This can, at times, be problematic because 9 times out of 10 a friend or family member knows of someone who went through a relationship breakdown and will explain the ins and outs of how their property settlement was dealt with. Unfortunately, no one case is the same and this article will discuss how the Court deals with property settlement cases and provide an insight that will be a valuable tool to all separating parties.
Where do I even start?
The first step in dealing with property cases is to establish the total asset pool. In identifying and placing a value on the total asset pool parties will need to include all of the assets, liabilities, and financial resources available to each of them. It is important to note that ALL assets, liabilities and financial resources are included. This means that anything owned or held in the name of either parties, whether or not they are held jointly, independently or with someone else must be included in the asset pool.
I know what we have, so what do I do now?
This is the point where contributions of each of the parties are taken into account. Contributions come in many different forms, however the Courts classify them into three main categories being financial, non-financial, and, homemaker and/or parent contributions.
Financial contributions are fairly self-explanatory, however it is important to note that it doesn’t only refer to the ‘cash’ that each party brought into the relationship or earned throughout the course of the relationship. Financial contributions come in different forms such as if one party’s family gifted them a significant sum of money throughout the relationship, or perhaps if one party had an existing property at the commencement of the relationship.
Non-financial contributions refer to the efforts of each party, which have increased the value of the asset pool. The most common non-financial contributions relate to the improvement of the family home or real estate owned by the parties’ own labour. Common examples include repainting, renovating, and landscaping.
Homemaker and/or parent contributions refer to the contributions of each party to the domestic duties of the household as well as the daily running of the household. This includes, but is not limited to, cooking, cleaning, and gardening. Parent contributions are again self-explanatory and relate to the duties performed in a parenting capacity which in most cases result in one party taking time off work to look after young children and then returning to work on a part time basis as the children grow older.
It is important to note that no one contribution outweighs the other and as such the Courts exercise careful consideration of the relevant contributions of each case individually when assessing what weight should be placed on each of the parties’ contributions.
I have identified our asset pool and have considered our relevant contributions, what do I get?
At this stage the Court considers the future needs to both of the parties. In doing so the Courts looks at the following things:
- the age and state of health of each of the parties;
- the income, property and financial resources of each of the parties and their capacity for employment;
- who has the care of any child of the relationship under the age of 18 years;
- commitments necessary to enable a party to support himself or herself or any other person that the party has a duty to support financially;
- the eligibility of either party for a pension or superannuation;
- the standard of living that is reasonable in the circumstances;
- the extent to which the earning capacity of a party has been affected by the relationship; and,
- if either party is living with somebody else, what the financial circumstances of their household are.
Once the Court has taken all of the above into consideration, it then assesses whether or not it would be fair and reasonable to make a property division order and what the terms of that order will be.
When faced with a relationship breakdown that involves property, it is important to keep in mind that each case is different and it must be treated on its own merits. There is no such thing as a presumption of equal entitlement or even a 50/50 starting point. It is always advisable that parties seek independent legal advice as to their respective entitlements so that decisions can be based on true and relative prospects of success and not stories of their friends’ past family law outcomes.
As one of the largest suburban law firm in Perth, Lynn & Brown Lawyers has a team of experienced family law lawyers who are available to provide you with advice relevant to your particular situation. Should you wish to have a discussion about what your individual entitlements may be, please don’t hesitate to contact one of our experienced team members.
About the author
Tihana Nevjestic is an Associate at Lynn & Brown Lawyers. Tihana was admitted in the New South Wales Supreme Court in 2010 and has been practicing in family law since moving to Perth.