Who gets what in a divorce?

Jul 22 2020

When it comes to the division of property – every family law matter is unique. There is no one size fits all approach and our clients are often surprised when we tell them there is no such thing as a 50/50 split rule!

Establish a “pool”: both parties disclose all assets

The initial stage in any property matter is where both the parties identify and disclose to each other their liabilities, assets and superannuation which goes into what we call a “pool”. As part of this initial stage, everything goes into the pool regardless of who owns what and how it came about i.e. before or during the relationship. Inheritance, jewellery, boats and motorbikes all go into the pool with both parties promising to provide full and frank disclosure (not hiding assets)!

Any hidden assets that arise after a divorce settlement can have serious consequences for the party not disclosing them!

Once the “pool” is established – only then do we start working out who gets what. This step is much focused on the needs and contributions of both and the who gets what part is done as a % split of the “pool”.

Assess needs and contributions of both parties

In looking at the needs of each party, we look to the future and consider age, health, income capacity and a range of other factors.

In looking at contributions, we look at financial and non financial contributions towards each of the assets i.e. who paid for what and at what stage of the relationship.

Once needs and contributions have been assessed, as mentioned previously there is no one size fits all approach and a 50/50 split is never an assumed position.

Take for example a recent client of ours who came to Australia during the 70’s, speaks little English, spent 25 years bringing up 6 children to the marriage and cooked and cleaned. She’s now 56, cannot find work easily and has no super. Her husband on the other hand has a very large super, a lot of cash in the bank along with many more years left in his successful and highly lucrative career. Once our client’s future needs and contributions were assessed, she received a split in her favour of 75/25 of the total asset pool.

The Court decides a fair percentage split of assets

Finally, courts have very broad powers when assessing what is a fair percentage split of assets during a divorce and look at a whole range of other factors in deciding what is fair and equitable. In doing so there is never a one size fits all approach and each case is unique.

With more than 30 years of family law experience, please contact us anytime on 02 8052 3322 or at info@masperolegal.com.au for a confidential discussion about your family law matter.