Divorce Property Settlement – How Much Will I Get?
How much will I get from my divorce property settlement in Australia?
When you separate, you will want to know how much you will receive from your divorce property settlement.
The aim of this article is to provide an insight into the way in which Australian Courts divide property between a couple when they separate or divorce.
We also explain how financial and non-financial contributions are assessed as specified by the Family Law Act.
Under the Family Law Act 1975, the Courts have the power to make changes to parties’ property interests if it is satisfied that it is just and equitable to do so.
When making this order, the Courts need to consider the parties’ respective contributions to the property and other factors including their future needs.
The Courts are required to look at the financial and non-financial contributions made by each party to the property.
They also need to ensure that the welfare of the family is secure, and any children of the relationship are taken care of.
This is what makes a divorce property settlement difficult.
Checking the financial contributions that each party has made can be tedious and time-consuming, however, if there is a clean money trail, it is easy to calculate the dollar value of the contributions.
With non-financial contributions, there are many difficulties involved in placing a monetary value on the contributions made.
In valuing a non-financial contribution, the court will place the cost of the work as if another person had done it.
For example, if you fixed the fence of the matrimonial home, then you should get a quote to estimate how money was saved, and also how much the new fence increased the value of the property.
We have provided an Australian divorce property settlement example later in this article.
Divorce property settlement FAQ
A divorce settlement is an agreement that is reached between a married couple as to how they will separate their finances after their divorce. It is the final legal statement between the married couple for documenting the terms of their divorce.
In Australia, 90% of the time assets are divided by an agreement between you and your spouse or de facto partner.
If there is no agreement reached, you should go to mediation where a mediator will try and resolve the question of how the assets are to be divided between you and your former partner.
If these options have been unsuccessful, you should speak to a family lawyer who will try to negotiate an agreement with your former partner.
Failing this, you will need to go to a Family Court to have a judge determine how assets are to be divided in a divorce.
A financial settlement can be finalised in as little as two weeks if the parties are agreeable to the terms of the divorce settlement. In the event that there are disagreements, the process of mediation may take a couple of months.
If the matter goes to court, a financial settlement may take up to 3 years.
All property of you and your former partner is considered “marital property.”
This means that even property brought into the marriage by one person at the beginning of the relationship becomes marital property that could potentially be split in a divorce settlement.
However, that does not mean that each spouse will get one half of the property. You will need to understand the 4 step process to get an understanding of who gets what in a divorce settlement.
Property settlement calculator
With our experience in Family Law and Property Settlements, we have developed a property settlement calculator to estimate what you will end up in your pocket after you separate from your partner.
Knowing the figure may help you better negotiate your divorce settlement with your ex-partner and help prevent you from going through the expensive legal process.
The court follows a 4 step approach when making a determination for a divorce property settlement between separated couples.
You will also see how we apply this to our Australian divorce property settlement example later in this article.
PART A – Establish the asset pool
The first step of a divorce settlement is for both parties will need to go through their financial records and see how much they are worth.
This means disclosing what is in your individual bank accounts, the value of properties that you own, the value of shares that you own, any interests you may have in a trust, business, or company.
You will also need to confirm the combined value of all of your debts or the money you owe to banks, the Government or any other person or entity.
PART B – What contributions were made during the relationship
The second step of a divorce settlement is to understand what contributions each of the parties made during the relationship.
This includes financial or non-financial contributions. Financial contributions can include wages, government payments, any gifts or inheritances received.
Non-financial contributions include doing housework, looking after the children of the relationship, and renovating the house.
It can include anything that helped maintain the house, the family, and the relationship.
PART C – What are the future needs of the parties
The third step of a divorce settlement is to gain an understanding as to what the future needs are of each party.
After deciding on the respective shares of property based on the above contributions, the court then makes what is called an ‘adjustment.’
The adjustment takes into account factors including the future needs of each of the parties.
The courts look at a variety of things here, including future earning capacity, the health of each person, the ages of each person, employment prospects and financial resources, responsibility for the care of children post-separation and divorce, the duration of the marriage and the extent to which it has affected the future earning capacity of the parties.
You may have different living requirements and need to have specific finances to maintain your health or a certain standard of living.
In all, there are fifteen largely prospective factors for consideration covering what each party is likely to need and what each is able to pay to support the other.
PART D – Is the decision fair & equitable?
The fourth step of the divorce settlement is when the court looks at whether or not their decision will be equitable and fair to both of you.
The court will then decide on whether or not you keep certain assets or if they are to go to your previous partner.
Women with dependent children can be at a considerable disadvantage compared to men in terms of their financial circumstances and their income earning potential following marital dissolution.
In particular, single mothers and older women living alone post-divorce can experience a drastic fall in living standards.
The court may require that they have a higher adjustment in favor of them as they have significantly less earning capacity.
Divorce property settlement example Australia
Here it is, the Australian divorce property settlement example that you have been waiting for.
The example we have used is one of a family in Australia that has a total of $1,000,000 between the two of them.
Jane and John have a total of $1,000,000 in their asset pool.
This includes all bank accounts, property, and debts.
Here is their balance sheet:
- Matrimonial home worth $1.5 million
- 1 Toyota worth $30,000
- 1 Hyundai worth $20,000
- Cash in bank $50,000
- Mortgage on house $800,000
- Credit card debt $30,000
- Jane’s superannuation $90,000
- John’s superannuation $140,000
Net Total of Asset Pool = Assets – Liabilities + Superannuation = 1,600,000 – 830,000 + 230,000
In this divorce property settlement example, the Net asset pool is $1,000,000
They are now going through a financial separation and want to know how an Australian property settlement works.
Facts of the example case
John and Jane have been married for 7 years.
Before they met each other, John owned a property in Sydney with $1 million dollars and had a mortgage of $600,000 on it.
John and Jane both had superannuation and kept their accounts largely separate.
They are both working and earning similar amounts.
They have one child together, Emma, who is 3 years old.
PART A – Identify the asset pool
Part B – Identify the contributions of the parties
John and Jane have negotiated and have calculated what their contributions were to the relationship.
As the parties were in a ‘medium-length’ marriage (7 years), they will have to look at their financial and non financial contributions, and see if there are any special adjustments warranted.
As John entered the relationship with an asset worth $400,000, he is significantly higher on financial contributions.
John and Jane have calculated that their contributions would be 75% to John and 25% to Jane, however, due to the length of the marriage, they have agreed that Jane will receive a 5% adjustment for her contributions to their matrimonial property.
Part C – What are the future needs of the parties?
As there is one child, there will need to be an adjustment to the parent who is looking primarily after the child.
A general rule is that for each child, you should allow for an adjustment of between 2-5% per child.
Please note that if there were no children, there will be no adjustment to either parent.
Part D – Is this just and equitable?
The settlement appears just and equitable as both parties are walking away with a significant proportion of the pool.
The outcome of the divorce property settlement example
The divorce property settlement split has decided to divide the property 65/35, meaning John will receive $650,000 and Jane will receive $350,000
This is just one of many divorce property settlement examples that we could potentially discuss with you based on your circumstances.
Ultimately it is up to the parties to make decisions as to how they would like to receive the funds and what they would be happy with.
If the parties cannot make a decision, the court will make it for them.
How our property settlement lawyers can assist
Our experienced property settlement lawyers practice exclusively in the area of family law.
We aim to provide the service that is right for you, however, we always try and mediate matters with the other party before taking the matter to court.
If you have reached an agreement and want to formalise it so that it is legally binding and enforceable, we can help you do that to ensure that there are no further financial claims.
We are able to negotiate agreements with your previous partner or their lawyers and can represent you in family court proceedings whether you are a respondent, or whether you want to commence the proceedings yourself.
The information provided is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.
For further legal advice, contact our office to arrange an appointment.