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Family law - property settlements

"What percentage of the property pool will I receive?"

This is often one of the first questions asked in an initial meeting.

It is important to understand that there are several factors considered by the court when determining the split and it is difficult to provide certainty around entitlements.

The Federal Circuit and Family Court of Australia follows a four-step process to assess the parties' entitlements and the division of assets.

Step 1 - Determine the pool of assets, liabilities, and financial resources.

The Court considers all property owned by the parties, including real estate, investments, business interests, trust interests and superannuation. Intangible property such as shares and goodwill of a business is also considered as “property” and part of the joint asset pool. Certain assets such as inheritance or a lottery windfall may be considered as an asset or a financial resource depending on the circumstances.

Step 2 - Look at the contributions made by each party to the acquisition, conservation, and improvement of the property pool.

The Court considers direct and indirect, financial and non-financial contributions, and contributions to the care and welfare of the family before, during, and after the relationship.

Step 3 - Considerations pursuant section 75(2) or 90SM(4) of the Family Law Act 1975, such as each party’s financial resources, age, health, earning capacity, and care of children under the age of 18.

If one party has higher future needs than the other (for example, due to prolonged ill-health or limited employment/earning capacity), an adjustment may be made in their favour.

Step 4 - Requirement that any order made to be just and equitable in all the circumstances.

The Court applies these four steps to each matter individually and the court has absolute discretion when handing down its decision. This can result in varied outcomes depending on the circumstances in each matter. The different outcomes in cases which might “appear” similar can be confusing to those who are experiencing relationship breakdown.

Nevin Lenne Gross’ family lawyer, Veronica Haccou has extensive experience advising individuals on matters related to dividing complex financial matters. She will provide you with expert advice on your own unique circumstances to achieve a just and equitable outcome for you. Contact her today to find out more.

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