the divorcing or separating parties cannot always get a 50% share of the property
It would be too simplistic to say that the assets of the marriage or a de facto relationship should be divided equally between the spouses. In reality, it cannot be strictly or simply be done. The divorcing or separating parties cannot always get a 50% share of the assets left over after settling all the liabilities and debts of the marriage or relationship.
First, the Family Law Act does not mandate that the assets of a marriage or a relationship be split strictly in half between the parties. In fact, s79 of the Family Law Act 1975 gives discretion to the court in dividing up the assets of the marriage between the parties.
Second, the spouses or partners do not bring properties of equal value into the marriage or relationship nor are their contributions during the subsistence of the marriage or relationship equal. For instance, one partner may have worked at one job all his life and earned a steadily increasing income which the family relied upon to pay regular bills while the other spouse or partner engaged in business that often brought a windfall of profit which enabled the spouses or partners to obtain luxury items.
Contributions of the spouses are not always equal in value throughout the existence of the marriage or partnership. One partner may get laid off or lose his job while the other steadily kept at a job until retirement. One spouse may opt to stay at home and raise the children while engaging in small business ventures on the side which steadily brings in additional cash for household expense.
Third, the spouses or partners usually want to take away a particular asset of the marriage and neither is willing to split the particular asset in half: for instance, if they own a home, the wife might want to keep the home, and raise their children there. The husband might want to sell the palatial home which costs an arm and a leg to maintain and simply split the net proceeds in half so that both parties can purchase smaller, more affordable homes.
Fourth, some spouses or partners both want one particular property above all else. For instance, both parties may want the beach front home. They are not willing to let the other have it. The value of some properties, such as luxury vehicles (Rolls Royce, Bentley, Porsche, Jaguar) increases with the passage of time while other properties (Toyota, Honda, Nissan and Ford) depreciate in value over time.
Thus, dividing assets is more complicated and often, more acrimonious than the divorce or separation itself. What is done in mediation and dispute resolution simplifies matters somewhat. First, parties are asked to furnish a sound factual basis to determine their contributions such as tax returns. This gives a more reliable basis. Then parties are directed to list down other properties not reflected in the tax returns. Both parties are asked to state a value for each of the properties they have enumerated. If there is a genuine dispute as to the value of the properties, it can be submitted for professional appraisal. The parties are then directed to list down the particular items they want to take out from the common asset pool as part of their share. If the dispute cannot be resolved in mediation then the matter will be brought for judicial determination.
The only risk to the parties in judicial determination of the division of properties is that the court can, in its discretion, take into account actions, behaviour and even the character of the spouses or partners as well as their needs given their general state of health and their capacity for self-support through employment. The judge will make sure that the division is just and equitable. Unfortunately, what is just and equitable is a matter of factual evidence. For this, you will need a good family lawyer if your dispute over division of property comes before the family court.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.