When people separate or divorce, they often have questions about how their assets and debts should be divided. Here are some of the most common questions we are asked about financial issues in family law proceedings.
Australian law requires judges to follow a 4-step process to decide how to divide property. One of those steps requires them to compare the financial and nonfinancial contributions that each spouse made to the marriage. The court might divide property in proportion to those contributions, but the final step is to make a property settlement that is fair in light of all the circumstances (including the future needs of each party).
In a long marriage, a court is more likely to view the contributions of each party as equal, and is therefore more likely to divide property equally. In a short marriage, the court might weigh financial contributions more heavily than nonfinancial contributions, particularly if both parties worked full time. How property will be divided in each case depends on the facts and on what the judge deems to be fair.
Almost all property, whether owned individually or jointly, will be included in the property pool to be divided. That includes property that was acquired before the marriage.
In practical terms, if a marriage is short, the judge is more likely to return property to the party who owed it before to the marriage.
In a longer marriage, the fact that both parties used or benefitted from the property for a long period of time is more likely to persuade the judge that its ownership before the marriage should not affect its division after a divorce.
In a longer marriage, evidence that a spouse made nonfinancial contributions to the marriage can be just as important as evidence that the other spouse contributed earnings to the marriage. A spouse who stays home to raise children, do laundry, prepare meals, and take care of the house is making it possible for the other spouse to work outside the home.
Courts view a long marriage as a partnership. The court will usually give significant value to the different kinds of contributions made by both partners in the marriage and will divide property accordingly.
A business is valued like any other asset. If the business is a corporation, the court might decide to divide its shares. Otherwise, the court might award the business to one party and award cash or other property to the other party to make up that person’s share of the property pool. In some cases, it might be necessary to sell the business so that its value can be divided.
Contest winnings, lottery winnings, and other windfalls are included in the property pool. However, since winning a windfall probably depends on luck rather than effort, the court is likely to divide those assets equally.
Please note that these answers are based on general principles of Australian family law and should not be regarded as legal advice. Every case is different. If you need answers to specific questions about your case, you should consult with a lawyer who practices family law.