The global rate of divorce and separation is on the rise. This can be attributed to various causes and Australia is no exception to the increased rate of divorce.
While divorce often brings emotional challenges, it’s crucial to approach the process pragmatically, especially when substantial financial interests are involved.
One important point to note is that you do not need to be divorced in order to have your assets divided. This is a common misconception. You can do your property settlement and split your assets anytime after separation.
4 Ways to Divide Assets in a Divorce
A Non-Legal Arrangement
This is usually preferred when the divorce is amicable.
Both parties come to a mutual agreement about who gets what without any legal documentation.
Keep in mind that since there’s no legal documentation involved, one of the parties can later go to court to get financial orders as per the Family Law Act.
Not surprisingly, most divorced couples evade this arrangement, and lawyers will always advise against not documenting the legal arrangement.
A Binding Financial Agreement
This one’s a legal document that can be signed by the couple at any point in their relationship i.e. before the relationship, during the relationship, or when the relationship ends.
These agreements stipulate the terms of how assets are to be divided between a couple. The court cannot overrule the terms unless exceptional circumstances are involved.
You must have solicitors involved to do this type of agreement.
Consent Orders
These are made when a divorcing couple agrees to how they want to split their assets and submit an application form to the Federal Circuit and Family Court of Australia detailing their asset split. The orders are filed in court and a Registrar will review and approve the orders.
Consent orders are a very common way for couples finalising their financial affairs.
Litigation – taking the matter to court
This one’s perhaps the most complicated. Couples only go down this road when they are unable to come to the same page on how assets should be divided.
In case of litigation, the family court decides how the assets and liabilities are to be split.
This process of a divorce settlement, Australia takes about 1 year and can be quite expensive.
Not only that, the couple has to attend court regularly.
People usually don’t opt for litigation unless no other option is available.
Also read: Conciliation Conference: A Guide to Resolving Family Law Disputes
How Divorce Asset Split is Calculated
By now, you have a fair idea of how are assets divided in a divorce Australia.
Let’s say despite multiple attempts of negotiations; both parties are unable to come to a conclusion regarding property division. What process is followed then?
First things first, you must understand that divorce and property distribution aren’t part of the same legal processes.
Divorce is nothing more than a legal termination of a marriage.
Asset division and property settlement are the formal distribution of properties after the separation.
It’s quite possible for a couple to finalize the asset distribution while they are living together or before the divorce is finalized.
If the court is involved, there’s a four-step process followed to determine how are assets divided in a divorce.
1. Valuing The Assets
The first step is identifying and valuing the assets, liabilities, and financial resources of the couple. Keep in mind that all the assets are valued, including the ones acquired before and during the marriage and the ones purchased after separation.
Assets can be anything like cars, savings, real estate, lottery wins, properties, and so on. The superannuation benefits of both parties are also included in the pool of assets.
Also read: Is my Ex Wife Entitled to my Superannuation?
2. Analyzing The Contribution Of Both The Parties
After valuing the assets, it’s time to consider the financial and non-financial contributions of both parties.
3. Assessing The Future Needs
The future needs of both parties also have to be calculated. Factors like age, health, income, and earning capacity of both partners have to be taken into account. Similarly, the care and support of children also have to be considered.
The court determines whether adjustments have to be made to the asset pool division depending on the future needs of both parties.
4. The Practical Effect
Finally, the court will consider the practical impact of the property settlement on both parties. This is to ensure that one party is not left with an unfair hand of cards at the end of the settlement.
Factors Considered by the Court When Splitting Assets in a Divorce Case
If the parties cannot decide how the assets are to be decided, it’s left up to the family court to decide.
As per the law, there’s no strict formula for a divorce settlement in Australia.
Contrary to popular perception, there’s no 50-50 split rule. It’s not that simple since a variety of factors have to be considered. Let’s take a look.
Stay-At-Home Parent Vs. The Breadwinner
It’s common for a stay-at-home parent to believe that since their contribution to the marriage wasn’t monetary, they aren’t entitled to any assets.
After all, they didn’t pay the mortgages or bills; how can they claim a share in assets following a separation?
But that’s not the case. The court takes into account the non-financial contribution of the party too.
This factor plays a crucial role in determining how are assets divided in a divorce Australia.
The stay-at-home partner plays a significant role in the up-keeping of the house and children, which cannot be ignored.
They are responsible for chores like cooking, cleaning, looking after the child, and so on. Hence, they cannot be prevented from staking a claim in a house they have worked hard to maintain.
The Assets Of Both The Parties
The court has to consider both the common assets and the liabilities while determining the division of assets.
What are the common assets between partners? Usually, they are,
- The family home
- Cars and other vehicles
- Personal property, including jewelry and collectibles
- Household items
- Savings
- Investment Properties
- Shares, Stocks, Mutual funds, and bonds
- Family trusts
Similarly, common liabilities that have to be taken into account during the process include
- Loans like personal or car
- Business loans
- Home Mortgage
- Credit card debt
The Length Of The Relationship
The court gives utmost importance to the duration of the relationship while determining how the assets are divided in Australia.
It’s quite possible that one spouse made a significant financial contribution to the marriage.
However, as time passes, the value of the initial contribution decreases. The longer a partner has spent their time as a stay-at-home spouse, the more their entitlement to the assets increases.
Children And Their Custody
This is one of the most crucial factors in a divorce settlement, in Australia. As per the law, the spouse who gets primary care of children under 18 years of age gets a major adjustment for their future needs.
The Future Needs Of Each Party
The family court also assesses the future needs of both parties. Their ability to work and health, mental or physical disabilities, all play a role in determining how the assets are to be divided in a divorce.
The Details Of The Divorce Asset Split
“What is my wife entitled to in a divorce?” This is a question every husband wonders right before the divorce.
“What is my husband entitled to in a divorce?” This is a question every wife has upon separation.
The answer to BOTH questions is – there is no law in Australia that discriminates or allocates wealth based on gender.
Instead, it looks at the contributions and future needs of the parties.
Owned a property before marriage
If a party owned a property before marriage, does it get split between the parties? This depends on the following things:
Did the other partner make any contribution to the property?
How was the property used during the relationship?
How long was the relationship?
Depending on the answers to these questions, if you owned a property before marriage, it COULD be included in the division of assets between two parties.
Example of property split with one party initially owning a property
Example 1: John owns a house worth 1 million dollars in 2014. He is renting it out, and the rent covers the mortgage repayments and outgoings. He is living in a rental apartment. He meets Jill in 2015 and married her in 2017, living in the rental apartment with Jill the whole time until they separate in 2019. In such a situation, the house that John had would not be included in the assets divided in a divorce.
Example 2: John owns a house worth 1 million dollars in 2005. He is renting it out, and the rent covers the mortgage repayments and outgoings. He is living in a rental apartment. He meets Jill in 2007 and married her in 2009, and they move into the house John owns. T
hey stay in the house until separation in 2022. During the time they live together, both John and Jill make financial contributions toward the property.
In such a situation, the house that John had would be included in the asset pool, as Jill made direct contributions towards the property, and the length of the relationship was long.
However, it is important to note, that even tho the house is now included to be split in the division of assets, it will still be recognised that John brought the asset in, meaning John’s contributions would be higher, meaning he gets MORE of the asset pool.
Keep in mind that the interests of the partner who bought the property or shared assets during the marriage will reduce with the increasing duration of the relationship. When a couple is together for a long period, both parties have equal rights on the property in the eyes of the law.
Confusion is often also prevalent regarding the property purchased after the separation which could ALSO be included in the formula of how assets are divided in a divorce.
When A Spouse Wins The Lottery or Inheritance
Now we throw in a complete wild card event – some kind of financial windfall.
This could be a number of things, for example, a lottery win, an inheritance, a large financial gift from parents, a compensation payment, a disability claim.
A famous example of this is the case of Farmer v Bramley in 2000.
The husband won the lottery for $5,000,000, 20 months after the separation. The divorced couple had one child who lived with his mother.
The wife was given $750,000 from the winning amount by the court as it recognized that she cared for her husband during the marriage and had been taking care of their child post the separation.
This is an excellent example of how tricky the division of assets can be during a divorce.
Indeed, as we said, there’s no fixed formula for how assets are divided in a divorce in Australia.
This is why you need an excellent property settlement lawyer on your side during the whole process if you don’t want to be taken to the cleaners. We can help you out!
Spousal Maintenance
There’s always a chance for either party to not have the financial means to support themselves following the breakdown of the marriage.
Perhaps a spouse wishes to pursue the education they had put off due to the relationship. It’s also quite probable that one will struggle to find work.
This is where spousal maintenance comes into the picture. The purpose of spousal maintenance is to give a partner enough time to get back on their feet. The ex-partner makes support payments to the dependent spouse for particular reasons.
Spousal maintenance is applicable when one partner has enough financial means to support the other months. It has to be awarded within a year of divorce or 24 months after separation in a de facto couple.
Financial support can be asked for while pursuing an education or while seeking employment. According to section 75 of the Family Law Act (1975), a lot of factors have to be considered to grant spousal maitenance, including,
- Age of both the parties
- The health of both parties
- Income, financial resources, and property of both parties
- Their ability to obtain employment
- Whether there’s a child under the age of 18 involved that one party has to take care of
- Whether a party is eligible for pension, allowance, or benefit under the state
- Responsibilities of the party to support the other person
- If a party needs financial support to maintain a reasonable standard of living
- Whether spousal maintenance order will affect either party and their ability to pay debts
- The duration of the marriage and whether it has affected the earning capacity of a party
- Terms of any binding financial agreement on the parties to the marriage
An Example Of How Are Assets Divided In Australian Divorce In Australia
We get it. It might all be too much for you to understand.
Let’s make things easier by giving you an example.
Let’s say there’s a couple with a net worth of $1,000,000 in their asset pool.
Assets
They share a house worth $1.5 million, a car worth $30,000, and another car worth $20,000. They also have around $50,000 cash in the bank.
Liabilities
They have a mortgage of $800,000 on a house and credit card debt of $30,000. The superannuation of the wife is $90,000, and the husbands is $140,000
The couple has been married for seven years. Prior to the relationship, the husband bought a property in Sydney worth $ 1 million dollars with a mortgage of $600,000 on it. Both parties were working and earning roughly the same amount, and they kept their accounts separate. They have a 3-year-old child together.
After the assets are identified, the contributions of both parties are analyzed. The husband had a higher financial contribution of 75%, while 25% of the financial contribution was made by the wife. Taking the length of the marriage into account, the wife was given a 5% adjustment.
A further adjustment was made for the wife as she has 9/14 nights of care for the child. The terms are finalised, and both parties got a significant portion of the total asset pool.
The division of the split was decided to be 65/35. Hence the husband got $650,000 while the wife received $350,000
My ex has a new de facto – how does this affect my property settlement?
A new de facto relationship doesn’t automatically alter any existing property settlement agreements made during your separation. Your ex’s financial responsibilities toward you remain the same.
There are a few ways a new relationship could indirectly influence the situation:
- Their Financial Contributions: If your ex’s new partner contributes financially to assets that were part of the original property pool, this could be considered by the court when reassessing asset values.
- Changes in Your Ex’s Needs: The court may consider your ex’s reduced living expenses if their new partner contributes to their cost of living. This could potentially affect spousal maintenance payments, if applicable, or their overall financial capacity to meet obligations.
- Your New Relationship: If you are in a new relationship and share assets with your new partner, those assets could be included in a re-evaluation by the court.
Key Factors the Court May Consider
- Length of the new relationship: A short-term relationship is less likely to have a significant impact compared to a long-term de facto where resources are likely intertwined.
- Level of financial interdependency: Whether your ex and their partner have joint assets, share expenses, or rely on each other’s income will be taken into account.
- Specific contributions: The court may determine if your ex’s partner made direct contributions (e.g., renovations) to assets included in the original property settlement.
Legal Help For Divorce Settlement, Australia
Keep in mind that property settlements are seldom straightforward. There are a lot of legal proceedings involved. Emotions are running high. At this time, you need the best available legal assistance to make sure you don’t end up with a shorter end of the stick. We can help you out!
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
131 thoughts on “How Are Assets Divided In A Divorce Australia?”
Good day
I have been married to an Australian citizen since Oct 2018. Due to many circumstances beyond our control I got stuck in my home country South Africa because of Covid, before we could apply for my partnership visa. My husband delayed my off shore application and subsequently found himself in another relationship in 2020. He indicated seperation in July ’20 but does not want to divorce me. Before I would have immigrated I sold all my furniture, household items and my car. I even lost my place of residence due to my lack of income during Covid. My husband hardly paid any form of spousal support and immediately following his decision to seperate stopped paying anything. If it wasn’t for the support of my Family to help me put food on the table, I have no idea how I would have survived.
1. I need help in divorcing him, I am legally bound to him and cannot continue with my life. It is like having broken pieces I can only look at and not put back together.
2. I need advice on some form of compensation. I lost everything and he has a comfortable life and good income. Not only that, all my future Dreams and hopes to be with him as my husband has been shattered.
Please let me know, if and how you can assist me in any of these matters, as I have attempted to find an Australian lawyer who can help me numerous times.
Seasons greetings, and Blessed 2023
Regards
Marietjie
Hi Marietjie. We are able to assist with helping you with the divorce application. I will email you directly with more information.
It seems that a financial settlement requires the selling of the family home owned wholly by the husband, of which is not fair to the husband when the wife ran off with two young children after 14 years of marriage. Would the family court be amenable to let the wife and children stay in the family home until the children reach eighteen, and then return the family home to the husband, and then consider any financial settlement between the husband and the wife 9 years later without including the husband’s family home? So, maybe, the wife living in the house for another five years to even up. The husband is 20 years older.
Hi
It is possible if you come to this arrangement on your own and sign it by consent. However if this matter proceeds to court, what you propose is an unlikely outcome as the courts will want to finalise the financial relationship between the parties.
Hello , I was married in 1977, I was driven out of my home by my husband in march 2014. I took my car,a few bags of cloths and my dog. He told me I could not divorce him. I have found out he sold all my assets, live stock and farm machinery , he still has the boat I bought. I don’t know where I stand. We bought land but that was put in his name. I’m now disabled, I want to divorce and receive my share. , i.just don’t no how to proceed. Hope you can advise me
Hi Loraine. Please get in contact with our office so we can assist directly admin@justicefamilylawyers.com.au
I’ve been married for 18 years.
I want to leave.
My husband retired 6 years ago.
Our home is fully owned by my husband.
Our rental property was bought 18 years ago when we married.
I have always paid all household bills, food ect.
I still work and pay all household bills and home maintenance ect.
Hi Karen. Even if your home is fully owned by your husband, it will still be included in the matrimonial asset pool that will be split between the two of you. If you have been married for 18 years, you will receive a significant portion of the pool. Our family law solicitors will definitely be able to assist with your situation.
Hi there! Im into 13 years of marriage now, and want to get out from this. My husband been paying the mortgage, and pay most of the bills coz he is paid well than i am. My share would be more into food and other expenses at home.
What advise you can give me please.
Thanks
Hi Maria. A 13-year marriage is considered a long marriage by the courts here in Australia. This means that you are likely to receive a significant portion of the asset pool. The law would like at the financial AND non-financial contributions of your relationship, meaning that even if you did not earn as much as your husband, you will still be seen to have contributed in other ways. We would need to find out more information before we can tell you what you are entitled to, but you can be assured that you will receive a good portion of the assets.
hey there, my friend is married to a man since 2018. They have lodged a mutual divorce file in court and waiting for the finalizatiin of the case. They are not living together from long. My question here is that she (my friend) is curious if she is going to pay anything to his husband at the time of finalzation of the case. They have never bought any together, no house, no car, no loan, nothing together and even no sharing of renting a property. Is she going to pay anything from her personal account or super fund as she does not own any property. She is renting a property on her own. So please advise if she needs to be aware of anything bedore finalization of case, like if she is liable to pay from her own. thanks
Hi Aman, if she does not have any assets, it is unlikely that she will be required to pay anything in order to finalise a property settlement. Even further, the fact that it was a short marriage makes it even more unlikely that there will be a property split where there are no funds available. The husband will need to establish that he made contributions to the assets that do exist, and if there are no assets, then I don’t see how he could have made any contributions.
Hi Hayder,
Please advise I’ve been married 15 years with 2 kids 13 and 9 years old. House debt of 380k and its worth 1 million dollars
She doesn’t want to give me anything when I have been paying toward the house and she earns more than I do. I have now moved from Qld and want to know what I’m entitled too
I’m paying for private schools fees and child support
Thanks
Hi Sav. In a long relationship with two children, you are most definitely entitled to a significant portion of the asset pool, regardless of whether you or her earned more money the other. It is hard to give an exact figure that you will receive, but your contributions could be assessed as equal (50-50) and the future needs could be in her favor as it appears that she has primary care of the two children. This might make it roughly a 40/60 split but again, this is just a rough guide. Feel free to contact our office for a free consultation.
Hi. My wife and I divorced after 38 years of marriage. We have three adult children who live independently. We jointly ran a catering business which is now closed. We have no property and we are both on the age pension. My wife has $225,000 in her superannuation and I have $385,000 in mine. We jointly own ASX shares valued at $230, 000.
I am 75 years old, with health problems and no potential to earn. I live by myself in a rented unit. I have no savings and live off my fortnightly pension payment. I have no income streamed from my superannuation yet. My wife is 66 years old and in good health and has the potential to earn. She lives at her mother’s house and acts as her carer for which she also receives a carer allowance.
I have all along agreed to an even 50/50 split with my wife. My wife however is seeking a $ 126,000 cash adjustment in favor of her on no specific grounds which I feel I cannot afford. The matter of trying to obtain a financial separation has been drawn over 2 years. We have had one unsuccessful informal mediation in this period and now she intends to file and take the matter to court. My concern is that to start with our combined financial pool, a small $ 835,000 is being depleted in legal costs. And she is using that as a threat for me to agree to her terms. My question is, how is the court likely to view our case? On the basis of this, what are my chances to obtain an even split with my wife in a court process and would I be entitled to claim the cost?
Hi Frank, in your situation the court is likely to say that due to the length of your marriage, your contributions towards the asset pool would be 50/50. The courts will then look at whether or either of you have a particular special need for more funds, and considering that you are both over the retirement age and not working, the court would not make an adjustment to either one of you. So from what you have told me, it looks like a 50/50 case. However i am uncertain as to how she presents the facts and why she thinks she should receive an additional $126k.
We encourage you to get in contact with our office to give you further specfic support and advice.
Understanding the terms of the legal separation agreement is important for anyone going through the process of separation.
Thank you for the great content, I have just scheduled an appointment online. Great service!
Hi, We have been married since 2009, my husband and his business partner run a very prosperous company, He paid for everything, unfortunately I do not earn as much as he does, I am his second wife, we have a daughter aged 13 and 3 adult children from previous relationships, I am no longer able to continue this marriage but I am also afraid that I will be left without means of subsistence, he claims that I am not entitled to anything because I have not contributed anything financially to the marriage, we have 2 investment houses, including one in a loan , We lives in rent house, I must have to rent a house for myself and my daughter and move out but I don’t know if I can handle it financially, I don’t know what my financial situation for separation and divorce.
Hi Barbara, it seems certain you will receive a portion of the asset pool. The fact that you have a 13 year old daughter is a huge contribution. The asset pool would include the investment houses and the company. Contact our office for a free 10 minute chat so we can see where to go from there.
I have a scenario..Husband /wife 20 years marriage 4 adult children.. husband owns businesses.. husband runs all businesses.. has done for 20 years…wife never interested or worked in the businesses at all..
Wife never financially contributed to the family or businesses.. a stay at home mum.. but children are adults now…and moved away…wife never had a paying job..until 3 years ago..casual 3 days a week. Separate bank account..never to be seen.
Been separated over 12 months and living separately…
Husband brought investment properties through business over the years prior..have family trusts and wife and husband have shares in the companies etc..
Can you apply or be divorced before settlement? Would that cause any issues from a financial point of view .. and what would the wife be entitled to.. % wise when husband contributed the majority of 100% to the marriage financially (her contributions for raising the children at home)but never cooked or cleaned
Is there hope for men that contribute hard work and a good living for a family without having an ex take the majority of it…
Hi JJ. Generally, the courts will view a 20 year marriage as a long marriage. The fact that there were 4 children, and the mother was a stay at home mum, would count as a non financial contribution. This would balance out the financial contributions made by the husband, meaning that it will be approximately a 50/50 split based on contributions. The court would then need to determine the future needs of the parties.
You can apply for a divorce before financial settlement. You need to be separated for 12 months in order to apply for divorce, so it sounds like you are eligible.
Hi, I have been separated from my husband for 16 years and we have not divorced. We were married for 7 years. Since separating I have continued to work full time and I have a house and super. I also cared for both of our sons who are now adults. My husband has not worked since we were married and is living in a rental property on a Centrelink allowance. I left him due to domestic abuse. Is he entitled to any assets in a divorce since we separated long ago? We agreed on the asset split on separation verbally but it was not registered anywhere as he would not sign anything.
Hi Jenny. Technically yes, the door is still open for him to make a claim, however he would have a very difficult battle in trying to demonstrate that the split should be based on a current asset pool as opposed to an asset pool from 16 years ago. He would have a very difficult time establishing the case.
Hi there, could you please guide me to get the super from my ex husband Bikash? I know he has super more that 100,000 in his super account. Please guide me step by step to apply his super s super is considered s property in Australia. I am facing huge financial hardship so I wan this property split ASAP. Regards
Hi Nila. If your husband has superannuation in Australia, then you may be eligible to apply for a property settlement seeking that you receive a portion of his superannuation. Please note, this will not be in cash, but rather, it would go to your super account. Please contact our office on 1300 171 2663 for a free chat with one of our family lawyers.
Hi Hayder. I’m separating from my husband. We have two young children. I have been a stay at home mum for five years. He makes almost $200k. We have a house. He wants to allow me 30% of proceeds from sale of the house. I don’t think this is fair just because he has paid all costs for the house. I will never have his earning capacity. I am 44 and he is 36. Is this fair? We don’t have any other significant assets except super.
Hi Jenn. This really depends on the duration of the relationship that you had together and what was accumulated during that period. It sounds like he may be up on contributions but you might have stronger future needs, i.e. primary care of 2 young children and a low earning capacity.
I’m currently seperating from my husband after 18 years. We built our home but it is in his name only and has been the family home the entire time. Have discovered he has refinanced over the years and the mortgage is now even bigger than the original loan amount . Am i liable for the additional funds mortgaged. They have not been used on anything to do with the home and i was unaware until recently it had happened
Hi Suzie, both the house and the loan will be included in the asset pool to be divided between the two of you. It will really come down to – what were the funds used for when your husband refinanced? This may require you or your lawyers to look at the bank statements and follow the money. If he has spent the money on the family, then it will be a debt of the marriage, however if he has for example transferred those funds to a 3rd party, then it could be argued that this debt should remain solely with him.
I’ve been married for 23 years. We have 5 children together. My husband hasn’t worked since 2003. I bought our house in 2006 with inheritance money from my aunt and put in both our names. I’ve been the only income earner and transfer money to him regularly which he mostly uses to buy alcohol and some groceries but I pay all the bills. Over the years my husband has looked after our non school aged children. What percentage of the assets would he be entitled to?
Hi Jes
It would largely depend on the amount of money you received in 2006 and what that equated to today. Due to the duration of the marriage – it is likely that he is going to receive a significant percentage of the asset pool. The contribution that you received from the inheritance money may mean you are up on contributions by 5 or 10 or 15% depending on the amount received. You would then need to consider the future needs of each of you.
Hello,
Separated from my husband 4 years ago and took our 4 kids (now aged 21, 20, 19 and almost 18) with me.
DA situation and we have all since been diagnosed with PTSD and other mental health issues.
Both live on a disability pension, so I didn’t ask him for child support as it’s minimal and wasn’t worth the constant argument.
He received a TPD payout from his Super prior to us separating which paid off our mortgage.
He has no Super.
I received a lump sum payment from my Superannuation for salary continuance which I will receive until I turn 60.
I paid him half of the payment up until the date of separation.
We have been married for 24 years and I want to pursue a settlement and divorce.
I have presented him with 2 offers about 12 months after I left, but he knocked both of those back.
I thought these were fair offers.
My biggest issue is; because he lived with CRPS and is in constant pain, which affects his moods, in order to sell the house we need to complete significant repairs. None of which has been attempted over the last 4 years that he has been living in the home.
I live in my parents home with the kids.
I am afraid of going to the house and preparing it for sale due to his moods and controlling behaviour.
Can I get a court order to sell the house as is?
Also he has a friend living in the house who doesn’t pay rent – there is allegedly no romantic relationship between them – if she is there for longer than 6 months can she claim a defacto relationship and would that effect my percentage of the house settlement?
TIA
Hi Melissa. YOu are able to get a court order to sell the house as is. You could also be appointed by the court as trustee of the sale so that you could attend to the repairs and then have the house listed for sale.
In relation to the person living in the house, I would suggest you read our article about defacto relationships: https://justicefamilylawyers.com.au/de-facto/de-facto-breakup-entitlements-australia/
Thank you Hayder I truly appreciate your assistance.
Me and my partner have been together for 10 years I had a house befor I met her and separate bank accounts she paid for nothing with her money I bought a second house in my name only and rented it out I gave her a credit card of mine to yous I have kept all bank statements for when we were married till now she made less the me but all her money for her self no help around the house she payed for no food your bills
Hi, are there any children of the relationship? If not, it appears that she will only receive a small percentage of the pool.
no children at all from any of us, no children between us and no children to different relationships
Hi Chris, you would have to think carefully about how you would move your ex wife out without causing the police to get involved. It is best that you have discussions with her about this, or alternatively obtain a court order. The police could easily get involved and be concerned that there is domestic violence.
Thank you can I move her out of my house or will I have to wait for court
It was really valuable your advises.
The case scenario is this: The couple lives in Australia/NSW. One part owns a unit overseas in 1993, before the marriage. They met each other in 1999. They married in 2003. Separated in 2015. There was no contribution to the unit. from the other part. They never lived in the unit during their marriage. Does the other part has any entitlement to this unit?
The unit will form part of the asset pool. It needs to be considered as a whole. The person who brought in the unit will be considered to have a higher initial contribution than the other party. This may result in them receiving a higher percentage of the overall asset pool (that includes the unit overseas).
If I own the house before I got married and going through a divorce with no children, can I move my ex-wife out at any time I like
Very informative & helpful
Wish I did know about your services before I hired my current family lawyers
Thanks
Hi there,
Been married for 11years.
Bought my home in 2008 and married in 2012 husband moved in. Husband said he’ll be transparent with he’s finances but up until now I haven’t seen anything just verbally, plus he hasn’t admitted this but he does sports gambling, maxed out my three credit cards, used my home loan offset, taken my savings out without my consent. Also contributed the house Reno and just living cost. He did support me financial for a few years but stopped for a very long time. I use to pay all the utility bills, childcare plus mortagage loans. Then few years ago I told him financially I am struggling please help and he started to pay the utility bills.
Apart from financial abuse I was also emotionally and verbally abused everyday.
I want a divorce but heard a few quotes from various lawyers and im hesistant due to the cost/ fees.
Another point my husband said he doesn’t want to divorce me and still loves me but I don’t trust him anymore. Worried if I go ahead with a lawyer and my husband refuses to sign the paper, will that cost more ?
Also If we divorce is he entitled/ or will have a portion of my house ? Even though he gambles a lot and been deceitful with he’s finances? Thanks so much .
Hi Andrea. You would first try and negotiate a settlement with him and then get him to sign the consent orders. If you dont have an agreement, you would not pay for it to be drawn up. It certainly sounds like there has been considerable intermingligng of finances, so the house will be included in the asset pool, but you would be up on initial contributions, meaning that your initial contribution of owning the house will be factored in. When you see a lawyer, they can particularise the amount so you get a better udnerstanding as to what you will receive. In regards to the gambling – it would have to be a significant amount for it to be worth fighing over – e.g. over 100k.
Hi.
My wife and I are in the process of separating. We have been married for 9 years, with 2 children under 5. We own a house with only a small amount to pay off, our cars owned outright, good amount of super and some cash. The overwhelming majority of financial contributions for all of those assets are from myself (let’s say 90-95%) and majority of family household expenses have been paid from myself. I own and run a successful business I’ve built up from scratch.
My wife has done slightly more of the child rearing but has still worked part time for a good chunk of the children’s lives without contributing much financially. I worked from home a day a week to care for the children as well as weekends of course and was flexible with hours always based on her and kids needs, but she would have done more on the balance of all things.
Prior to children, I financially supported her to change careers twice through study. We intend to work toward a 50/50 split for child parenting going forward.
What are your thoughts on a possible outcome with this one?
Thank you!
Hi Matt. First thing, the house and the business would be included in the asset pool. It sounds like your contributions would be assessed higher than hers. Hard to tell what that would be because it would depend on what the value of the business is and when it was established. For example if it was established before the relationship, it would be an initial contribution. Once we know the numbers we can give better advice. Future needs – you are going to share the children so thats great, but she might have a lower earning capacity than you, so she may receive a 5% adjustment.
Hi,
I have been married for 30 years, and have been wanting to get a divorce for some time now, but I cannot afford to move out, as I just have a casual job. My husband won’t leave because he owns the house and won’t go anywhere!
We have not slept in the same bed for 5 years. When our daughter left for overseas, he has slept in her room.
And plus he works night shift, so even before she left, I would get up in the morning, and he would then go to bed.
I just don’t know what to do. We don’t speak
…not a good life 🙁
And I don’t know if I could even afford the legal fee’s for a divorce.
Hi Sharon, if you have been married for 30 years, then you are also entitled to a portion of the property. Are you aware of what assets are in the asset pool? We would be able to assist you figure out how we can assist with a free phone call with one of our family lawyers. They may be able to assist and receive fees at the end of the matter.
Hi,
I’ve been married to my husband for 7 years. I am from overseas and came to Australia when I was 18 to get married to him. We’ve got 2 kids together. I am now trying to get out of this relationship due to constant domestic mental abuse on myself and sometimes on my kids in different ways.
We’ve sold our house that he had bought prior to meeting me and have been living in a rental for the last almost 5 years. He is now trying to say, that he doesn’t have to give me anything or if so then the bare minimum because I haven’t contributed financially at all to this relationship and been a SAHM. We’ve bought a caravan and a car together (to which he’s saying are his, because they’re in his name) + have a lump sum in our joint bank account from the sale of the subdivided blocks of land. He’s been taking out big portions of money out towards his Krypto which he said that if I don’t wait for it to boom I’ll be taking out my share at a loss.
Will I be entitled to anything at all? is everything his just because he’s been the breadwinner, and everything is in his name?
Hi Yazzi, you would definitely be entitled to receive a portion of the property. One of our lawyers will get in contact with you for a free call.
Hi
My wife and are are looking at separating after 10 years of marriage.
My wife paid the deposit and stamp duty of $150k on a $490k purchase. The house is now worth $1.2m after a few renovations over the years. I have paid for most (70/30 split) of the renovations to the home.
I have and continue to pay all the bills, living expenses and loan repayments for 10 years.
What would the split be?
Hi, it would depend largely on the sum of your contributions over the years. This could be calculated by the salaries that you both earned and how much was contributed towards the house.
After 38 years of marriage I left my husband. In the last 10 years of the marriage alone my tax returns show I contributed $1.25m more than my ex to the family joint account. I have agreed to 50:50 split of Super (I had 980k he had 120k). I would like 60:40 on the house split, he wants 50:50 – I don’t believe that’s a fair split. Is my income contribution likely to be in my favour in achieving this? House is worth$2.2m.
Hi Judith, it is arguable that your income could be considered as a higher contribution. We would need to get more information about the relationship (you can book in a free call) like what you each did throughout the relationship, did you take time off or did he take time off work to look after the kids. For example, if he took time off to look after the children whilst you kept working, it is arguable that the increase in your earning capacity is linked to this move.
***
My uncle is disability, and he got a $800.000 house before he married my aunty.
After 15 years married
My aunty and him buy one more house but just pay off a half $200.000 out of $400.000.
My aunty uses his subsidy to buy a $70.000 car and my uncle’s car is about $15.000.
In the bank account, they both have the same money.
They have 3 kids: 4 years old, 11 years old and 15 years old.
My uncle divorces with my aunty and already had a new wife, he is doing sponsorship to bring his new wife to Australia.
Is there any chance my aunty can get the $800.000 house and the $70.000 car because she need to feed the 3 kids
Other lawyers said that the house is bought before marriage and my uncle disability, so my aunty won’t get much.
***
Hi David, this question is interesting but certainly requires a deeper dive on the facts. The 800k house is definitely going to be included in the pool. If it was unencumbered, then that will be a significant initial contirbution from his side. This means he will receive overall an adjustment to take into account that he brought in a large portion of the matrimonial asset pool at the start of the relationship. He could be considered to be ahed on contributions by 10 – 20%. Then you will need to consider their future needs. Whoever is looking after the children will get an adjustment of potentially 10%, and then your uncle who is disabled could potentially get an adjustment if he cant earn money.
My wife has the title of her grandmother’s house in her name, this took place about a year ago. She is the only heir to her grandmother. However, her grandmother is still alive, although has dementia and may not last much longer. I moved out of the family house 6 months ago. Would the grandmother’s house be deemed as inheritance or an asset, or not be included at all?
Hi Stuart, the house will be considered an asset that will be included in the matrimonial asset pool. It will be part of the assets divided in a divorce.
I’m in a seperation and my ex partner wants to buy me out
What should I do
Hi Clancy, you should figure out the total value of the asset pool, then see what your share of that pool should be. Then you can determine whether or not the buy out is a good deal and either accept or negotaite the amount you want.
Hi Hayder, my husband and I have been married for 15 years and contributed equally to the marriage. We have 2 children together. I will soon though be inheritating $1M and plan to leave my husband on receipt of these funds. Will he be able to have any claim on it? I suspect the children will mainly live with me just seeing their father on the weekend.
Hi. He will absolutly have a claim to a portion of it. It will be hard to completely isolate the inheritance. I have presented on this topic numerous times and have written an article about this https://justicefamilylawyers.com.au/property-settlement/inheritance-and-divorce/
Hi Hayder, my wife and I have been married for 9 months and she has moved out with her son and I remain in the house with my two children. All kids are over 18 years of age, all working and this is both our second marriage. The house is soley in my name, she has never paid bills or assisted in mortgage. I have however paid off her car debt of $17K. I bought the house for $800K two years ago with a $200K deposit which is now worth over $1m. What would she potentially be able to claim. She wants to sell the house so we both rent and she can be paid out.
Hi Harry, it really dpeends on what she contributed to the house and how long the relationship was. If she didnt pay anything towards it, no children of the relationship and it was a short relationship, it is arguable that she should not receive anything from it.
Hi, partner A house owned, solo parenting child 1. Met partner B at child’s age 12 mths. Lived together from child’s age 16 mths.
Partner B had put a deposit on an off the plan home prior to getting together. Partner B settled on the home 7 mths later, both moving into the home together.
Partner A home was rented out with rental income provided.
Had second child together 10 mths later.
Sold both assets / homes and pooled funds to purchase a home 3 yrs later.
Separating within 1.5 yrs. Total 5 yrs together.
Does partner A maintain primary carer of child 1?
Are funds from individual home sales that were pooled to purchase current home recognised and considered in the separation of assets? Especially if partner B now earns triple the earnings of partner A after studying to gain a higher qualification during the relationship?
Hi Nik, Partner A would probably remain as the primary carer of child 1 unless there were some very unusual circumstances that occurred throughout the relationship. The house that was purchased is definitely part of the pool of assets that need to be separated – so you would follow the 4 stpe process as outlined above.
Hi Hayder, My husband and I recently separated due to a DV situation. No children shared. We were only married for 14 months. I left the home suddenly with a suitcase and my dog due to being unsafe. I haven’t been unable to find permanent housing and I am currently staying with family. The house we lived in was in his name, however, I have been contributing to the mortgage on this property for several years. I work full time and all of our bills/incomings and outgoings have been mutually shared. I sold all of my furniture and assets when we moved in together several years ago and we have since acquired all of our furniture and household items together. I have been left with nothing and I’m wondering whether I am entitled to anything from this marriage in terms of settlement? Thanks in advance.
Hi, It sounds like you could be entitled to a proportion of the equity in the property. It might become an exercise of, is it worth it? For example, if you have contributed 50k and he had contributed 100k to the property, it is clear that you have contributed 1/3 to the property and should recieve a portion of it. If you had contributed 10k and he had contributed 100k to the property, although you had certainly made contributions, they may not be enough to warrant pursuing him for a property settlement.
My husband has divorced me from a court outside Australia and the divorce is following a non Australian law. Can I still claim for a 50:50 split of my husband assets from an Australian court?
Note : my husband and I still live in Australia but the divorce is issued from outside Australia.
Hi, yes this is possible. It does not matter which court a divorce is issued in, your property rights will remain the same in Australia under Australian law.
my husband and I married 9 years ago and seperated 1.5 years ago and we bought a house 5 years ago and lived both in the house,purchsing price is $300k
The deposit for the purchasing the house is around $30K
I borrowed money from friends and family ,contributed $25K cash to this but he pays all the mortgages and bills when we lived together and paid$10K of the deposit back to my friend
I am a housewife and can speak very little English
he was working full time and has super
I moved out due to DV and lived with friends and family since I moved out 1.5years ago.
in this case am I eligible to any property settlement？
Hi Oshiana, it sounds like you would be eligible to make a claim for a property settlement as you made contirbutions to the house. You should speak to one of our lawyers to have a better understanding as to your entitlements.
My partner (not married) owned 2 properties outright before we came together. He has paid for utility bills. I paid for groceries, household goods, my car etc and maintained the housework of both houses. Lived in primary house together for 10yrs. We have 2 children 5 and under. I have been a stay at home mum for 5yrs. I would like to leave yet I’m terrified I’ll be left penniless, homeless and he’ll try to take our children in order to accomplish this. Do you have an idea how this would likely play out?
Hi Emma, you will definitely be receiving a portion of the asset pool, including a portion of the two properties that were owner prior to starting the relationship. When there are children involved, the court will ensure they are looked after. Please get in contact with our team to have a free 10minute call to discuss further.
If all other things were equal, but in a 11 year marriage one party earned a million more than the other (both worked full time for entire duration) would this create an adjustment away from 50:50?
What if one party exclusively paid the mortgage and any capital improvements/maintenance for the house and the other paid the household bills?
And if there were children from a prior marriage, do they count as future needs or not counted due to not being the current spouses children?
Hi Geoff, yes it sounds like your financial contributions will be higher meaning that you will receive a larger split. Children from a previous marriage- it will depend on whether it effects that parties earning capacity.
i have been married to 23 years with no children and i have been giving my husband 76% of my salary to my husband for groceries etc.
he has been retired for 4 years and i am still working. he is 15 years older than me.
my husband had been able to do more super contribution.
he was married with 2 adult children.
is that true that if we get divorced then i cannot touch his super? i am
only entitled to 50% of our house
No this is completely not true. The superannuation will be included in the pool and will be split as per the calculations above.
You could be potentially entitled to more or less than 50% of the house, based on the calculations in the article.
Hi Hayder please advise. My husband and I have decided to separate after 25 years of marriage. We have 3 properties both in our names. 2 is for sale and he appointed his lawyer to put the sale proceeds in a trust without my consent. Is this legal? He also said he wants to keep his superannuation and trust investments. He knows I don’t have a job and means to Py for a lawyer, please advise what I can do or where to ask for help? Thank you!
Hi
You should get in contact with our office for further advice. If the property is in joint names you will be required to sign both the agency agreement and the transfer documents to have them sold.
Hello,
My ex wife and I are going through a divorce due to false DV accusations, we’ve only been married for about 2yrs. I have acquired my apartment way before we got married, where we moved in during our married life, though she never contributed to the mortgage, or any bills in the household. I have a super worth 90K plus, and don’t have much in my savings. I have no other asset outside my apartment and its contents. How much is she entitled do you reckon if there is? Thanks in advance.
Hi if it is a short relationship of 2 years and there are no children then you could both walk away with what you have.
Hi Hayder,
My husband and I are separating after 15 months of marriage (not long!) we have a 3 month old baby daughter that I’m currently on maternity leave with on a very reduced salary. I also have two children from a previous marriage.
I came into the marriage with 200k from a recent sale of my house, he came into the marriage with 20k. We bought a car 6 months ago (only have one car) that was 14k and owned outright. All our money is in joint bank accounts, nothing separated financially when we were together. We live in a rental through his work but it is free. So once I move out I will have to pay to live somewhere but he will not have a financial burden of rent or bills as that is covered through his work.
Is he entitled to a 50% portion of the money I bought into the marriage a year ago? Is the car included as a shared asset even though it’s in his name? As I will have to provide housing at my expense is he required to help with this as we have a tiny baby and I can’t work (and he is living rent and bill free?)
I’m unable to work at the moment either because of our newborn baby, but I don’t know what the future looks like in terms of finances if he can take 50% of what he bought in.
Any help would be greatly appreciated
Hi
You should get in contact with our office for further advice. Because it is a short relatinoship, there is no automatic entitlement to a 50% split, with both the funds from the sale and with the car.
I have a quick question, my husband and I have been married for 16yrs and prior to that lived together for a year.
We have a child together.
He has an investment home before we got married in his name only. As part of the settlement the property will not be sold.
1. Am I entitled to half the share of the Market Value of the investment property?
2. When calculating the share would I take into account (keeping in mind the asset is not going to be sold)
– a. the loan on the asset
– b. repairs & maintenance costs
– c. sale expenses
– d. CGT that he would incur on the asset
Considering that he would have future benefit on the property as the market value will increase, will I still have to share the loan, and all the expenses that go with selling the investment.
Hi
The investment property will be included in the asset pool. I am unsure if it is the case that you will receive 50% of it though.
If the property is to be sole – when calculating the share you will take into account all of those expenses. The net figure is what will be included in the asset pool.
If the property is not to be sold, you will only be taking into account the loan on the asset.
If I had an unencumbered rental property before marriage, which we received a weekly rental income for and my husband contributed very little to that house, does he still have a claim in my property?
Also we have just sold our property which I believe my ex husband was the actual beneficiary and the purchaser his trustee, do I have any recourse in the sale considering it was well below price expectations and my ex husband did not declare he was going to bid at auction which was passed in and sold that day.
Hi
It will all be part of the asset pool, and the split will depend on the length of the relationship, the contributions and any future needs. If you can demonstrate that your ex husband was the actual beneficiary of that property, it could also be part of the pool.
My wife and I are separating after four years of marriage. We have a house worth $400k more than the purchase price which we were able to buy thanks to a loan of $110k from my father. We have been paying him back from our joint account fortnightly.
My wife has three children from a previous marriage who reside with us full-time. I have a son who resides with us every other weekend. She receives no child support for them from their biological father. I pay child support for my son. We both work full-time and both have capacity to continue doing so. She has never wanted to seek legal guardianship or adoption of her children. She has told me that she would get 65% or more of the combined asset pool and doesn’t need to pay back my father due to her future financial situation.
Would this split seem right? Does my father’s assistance to the house purchase and my financial contributions to all four children and the family count for anything?
This split does not sound right at all. The $110k sounds like a loan that needs to be repaid. Then the balance to be divided between the two of you. We would have to work out wheat the split would be.
Hello, my husband and I married in Dec 2013 lived together since 2012. He wants me out of his house that purchased before we’ve met which is around $2.9 million and he wants to divorce me. He also owns three other investment properties and one holiday house all paid off no mortgage, all valued at approx $9 millions. I got very sick last year paralyzed GBS could be from the stress, but better now and can only work 15 hours a week. Before I’ve met him I was working full time. Unfortunately I don’t have assets only a small around $32k super. After we got married he asked me to cut my work to look after him, the houses and his investments, do all paperwork for his properties, all his taxes. He would only collect the rent. I never had any money from him during this marriage. He pays for food bills in the house and 2-3 times a year holidays which some times I contribute too. I am paying everything I needed for myself. That’s why I still need to work. By me still working and not asking him for any money I saved him all these years. He also got few big savings in few bank accounts, around $300-$400k. He is 83 and I am 67. He is fit and strong I am not well at all. He asked me to move out for no reason. He said that because everything is in his name I won’t get anything. I was serving him like house keeper, accountant, real estate agent, like a servant all these years. He mentally abused me and intimidated me and I had no say. He is got four children from previous two marriages, all married and I have two children. He even restricts me from seeing my kinds when I want to. Where I am going to go. I have medical certificate to work only 15 hours a week with my restrictions. How am I going to find a place to rent when I earn around $380-$400 a week. He locked me out few times. Please advice what are my chances to get some share of the big assets he owns. Thank you.
Based on the information provided, you’ve made substantial contributions to the marriage in terms of homemaking and administrative work, which can be considered when determining property settlements.
Given your health condition, age, and limited ability to work, you may also be entitled to spousal maintenance. This is where one party provides financial support to the other party to meet their reasonable expenses.
To receive comprehensive advice and guidance on your situation, we recommend that you schedule an initial consultation with one of our experienced solicitors. During the consult, you will receive specific information about your matter, and have a thorough understanding of the process, likely outcomes, and next steps.
My husband and I have decided to divorce, and have been separated for 1 year under the same roof.
We have been married for 20 years, and have 2 kids.
I have always been the stay at home mum, and don’t have any super.
I have not contributed financially, as I have been the carer of the children.
He earns $250,000+ per year and pays all the bills and mortgage.
He does most of the housework.
Our house is worth $1,700,000 and we have $600,000 left to pay of the mortgage.
We don’t have any other assents, other than a car each, and furniture. No other debts.
He is suggesting a 55% for me, and 45% for him split of the property sale.
As I have never worked and don’t have super, should I be pushing for 60% in my favour?
Or is this a good deal for me and I should just accept 55%?
Hi, we would definitely reccomend a more in depth consultation with one of our lawyers. From these facts it could be anwyehere between 55 – 65% to you.
I have been with my fiancee for 12 years. I have been the bread winner for our home of 7 years, however, her father bought the large property we live on along with some machinery. Since her father passed she inherited in the millions to which she is now abusing and threatening me with violence to leave. Everything is in her name, I currently have to stay with family as have no where to go.
If you are facing threats or are at risk of violence, it is important to contact the police. You may wish to consider applying for a Domestic Violence Order for your safety. This order can set conditions to protect you, such as preventing your fiancée from contacting or approaching you.
We recommend that you seek legal advice from an experienced family lawyer to provide guidance on your rights regarding the property. Under Australian law, de facto relationships have many of the same rights as married couples when it comes to property settlement. Factors like the length of the relationship, financial contributions and non-financial contributions are taken into account when determining property division. Even if the property is in your fiancée’s name, given the length of your relationship and your contributions, you may have a claim.
Married to husband for 30 years. 1 adult child.
During marriage we have both worked…sometimes I earnt most, sometimes he did.
I am 5 years older than him and am looking to retire in 5 years. At the moment, his salary is double mine. He has 9 years of work remaining.
If younger, a 50% split would be fine, but anticipating retirement. Is a split of greater than 50% for me possible?
We recommend that you seek guidance from our experienced family lawyers to gain a clearer insight into your entitlements and potential distribution percentages of the asset pool.
Hi,
We got married in 2021 after I accidentally got pregnant. We also bought a house together in 2022. He already has a family home worth 1.6 million all paid off and I have never lived in that house. The house that we bought last year and is our primary residence, I have been paying the mortgage but my had a major contribution in saving for deposit. Our baby is now almost 2 years old but I want to divorce him because this has been a very toxic relationship for me. My question is more about child custody than asset division. How does that work?
Hi, child custody arrangements following separation will depend on whether or not you and your ex-partner can reach an amicable decision by consent or if litigation is required. We recommend contacting our office to schedule a consultation with an experienced family lawyer who can advise you on your rights and guide you through the process.
Hi
I’ve been married for 40years , my husband and I own a house with approx value of 800k in both our names
I’m wanting a separation and eventual divorce and wondering the costs involved legally ?
He is 67 and I’m 65
He owns land worth 450k in his name and is on a partial aged pension as I still work part time and 2 years away from pension age.
He has about 30k in savings and super
I have approx 250k savings and 200k in superannuation
We have raised 2 children, now independent adults
He worked until 50 years of age and I have worked the last 20 years having paid for all bills in that time with no contribution from him.
What are each of us entitled to please ?
Hi, the costs associated with divorce and property settlement can vary based on the legal firm, the solicitor’s experience, and the complexity of your case. Your entitlements in the property settlement will depend on various factors, including the length of the relationship, financial contributions (such as those you have listed), and non-financial contributions, including child care and homemaking roles, as well as the future needs of each party. For a clearer understanding of your entitlements, likely outcomes, and costs, we suggest reaching out directly to our office to schedule a consultation with a solicitor.
Hi, I’ve been divorced 3yrs. now but have considered my case on a domestic violence victim on 2018. I asked help from the Victoria Legal Services since I don’t have a lawyer, the case is already closed but what I want is for my justice being used and abused on our 8 years relationship. I didn’t have any contribution monetarily but have contribution towards his business and all domestic jobs as a wife. please advice me what should I do to get my automatic appropriation on my deep service as a wife. Thank you very much !
My son is separating after 3 years of marriage. He’s Australian citizen. He bought the house before his marriage and it is in his name. He’s paying the mortgage from his account, wife didn’t contribute in paying the mortgage. How will assets get distributed? She’s earning more than him and they have a 1 year old baby.
Since he owned the house before marriage, the court will consider whether his ex-wife made any contributions to the property, how the property was used during the relationship, and the length of the relationship. Because it was a short relationship, there may be a minimal/no payment to her.
Hi,
My husband and I have been married for 8 years and I have discovered that he has been having affairs for several years. We have 2 children under 6. We own a house worth $2.1 with mortgage remaining of $1.4. I contributed more to the original deposit with inheritance of my own – an amount of $280,000. We also own a car outright purchased in both our names to the value of $75000. We have savings of about $40,000.
We both work, and in the last 4 years my husband hads gradually earnt more than me – whilst I work i have had to sacrifice my career to as I am also essentially the main carer of our children 90% of the time as well as the only one who contributes to the running of the household. Once we split, I will remain the main career 90% of the time.
What would a potential settlement outcome be?
Hi
Given your situation, where you contributed a significant amount to the original deposit through inheritance, and have been the main carer for your children, these factors will likely be considered in your favor in a settlement.
It appears like you are substantially ahead when it comes to contributions – one important point will be the inheritance and when it was recieved in the relationship. But it is safe to say that in terms of contributions, you will be ahead. In terms of future needs, having two children and being the primary carer of them in the future, you will also likely receive an adjustment for this. You are probably looking at a split between 60-70% depending on how the inheritance is viewed.
For a more precise understanding of what a potential settlement might look like in your specific case please contact our office.
Hi,
I am 74 years of age and my husband is 79 years. My husband and I have been in a relationship for 27 years (23 years of marriage). It is a second marriage for both of us. I owned my own home before the relationship commenced and worked full-time. My husband was on a Disability Pension. A few years into the relationship I sold my home and we moved to another property. My husband did not contribute anything financially. A few years later, I sold this home and we moved to the third and final property. The house remained in my name throughout. It was always understood between us that I owned the home and he had no intention to make any claims against it. We have always had separate bank accounts and have not owned anything jointly. However, we separated last year (his choice) and we have just undergone our first mediation where he wanted 50% of the house. Due to my age and health needs, I would like to stay in the home, which will not be possible if he is given 50%. I also believe he was influenced by his daughter to leave the marriage. Throughout the marriage his only contributions, apart from paying part of his pension towards daily living expenses has been non-financial. For example, he mowed the lawn, did some cooking and took out the garbage. I did all the house cleaning, shopping, household admin and budgeting, gardening, and purchased most household items from my own money. I also paid solely for all of the major house maintainenance, such as replacing the floors, painting of the inside etc.
How would the court view our situation? What would the potential property settlement be?
Thanks.
In your situation, the court considers several factors for a fair property settlement: the duration of the relationship, contributions by both parties to the property, financial resources, earning capacity, ages, health, and other relevant factors. Given your age, health needs, and the fact that the house was always in your name, these may be significant factors. However, your husband’s non-financial contributions, like household tasks, are also considered. From your story it appears like you will receive more than 50% as you came in with higher initial contributions. For a more detailed estimate please contact our office.
Hi Hayder,
We have the joint (50/50 property (house) with 2 children over 18, 22 years old marraige.
I made 100% financial contributions and my wife non-financially contributed by looking after children. Is it legal that my wife and children have stopped me entering from my house by the lies that they fear violence against me? Can you help me to live in my house until the financial settlement as it is my legal right but Police is no help as such. If we go for the court case, 2 children over 18 and 100% financial contributions wll change the basic 50/50 in the favour of me or my ex-wife? Thanks Adam
If your name is on the title of the home, you generally have a legal right to access it. However, if there are allegations of violence or fear of violence, even if you dispute these claims, the situation becomes more complicated.
It is important to seek legal advice from an experienced family lawyer. They can provide guidance on your rights, potential outcomes in court, and the best course of action. It may be necessary to attend mediation or go through legal proceedings to enable the court make orders regarding who has the right to stay in the home temporarily until a final settlement is reached.
Hi,
My husband and I have been together for 17 years, married for almost 10 years, and we have 2 children. We own a house together worth 1.2 million and a block of land valued at 1.2 million ($890,000 mortgage for both). I’m most likely to stay in the family home and my husband will move out. It will likely be a 50/50 custody arrangement. We both work, but my husband earns twice as much, and we are in our late 30s. What would a potential settlement outcome be?
Hi Renee, determining a settlement outcome involves various factors, and each situation is unique. If you and your husband can reach an amicable agreement on how the assets will be divided and regarding the care of the children, this will allow greater control and more predictability over the settlement terms. If an agreement can’t be reached and the matter goes to court, the court will consider both financial and non-financial contributions from each of you, as well as future needs. This includes care for your children and your respective earning capacities. Consulting with a family law solicitor is advisable to gain a comprehensive understanding of potential outcomes. Both parties will need to engage in full and frank financial disclosure. Your solicitor can then use this information to assess a fair and equitable division of assets.
Hello Hayder, my husband and I will be married 40 years this September 2024. Together 45 years . We have raised three wonderful children , now well established adults . Husband has always worked , I have also worked on and of over the years . We have a home which is in both our names . Over the years I have worked I received roughly $30 thousand dollars from super,Which went totally on well needed maintenance on our property which we have lived in for 40 years . My husband controls our finances , i am retired and would like to start my wonderful retirement years by studying to become a registered marriage celebrant. He is still working but can retire when he wants . His super is around one million which he can access . Until he retires I can’t move on as l don’t want to be together anymore. I have asked him to access a sum of 40 thousand from his super so I can buy an on-site caravan giving me somewhere too live for now and also pay for my 12 month course . And when he retires we can spit everything up then. I have wanted too do this spit without any hard feelings. We both love our children and have beautiful grandchildren we are very family orientated. He is 63 years old I am soon to be 67 years younger. What advice could you give me . Am I entitled too halve off everything. W regards Therese
Hi Therese, given your 40-year marriage and significant contributions, both financially and through other non-financial means like property maintenance and raising a family, these factors will be taken into account in any asset division. It’s important to note that assets aren’t automatically divided on a 50/50 basis (unless both parties consider this to be the most fair option and the decision is supported by legal advice). Instead, the court considers the contributions made by both parties throughout the marriage to determine a fair division. If you and your husband can agree on how to divide your assets amicably, it’s beneficial to formalise this agreement through a Binding Financial Agreement or consent orders. Seeking legal advice from an experienced family lawyer is highly advisable to navigate this process and protect your rights and interests.
I have been married for 33 years, (together for 38). We have 3 adult children, 1 still living at home and I have custody of our grandson who is 6.
My husband is an alcoholic, but I had learnt to deal with that, 7 years ago he got cancer, and after being given the all clear, became a totally different person. He is selfish, and very nasty. I have not shared a room with him for approximately 2 years. My inheritance paid off our mortgage and fixed up the small things around the house.
When he works, his money is his. I pay all the bills, and food. He will cook his own tea or put washing on, but then he will complain and get very nasty. If I ask him to help with bills he refuses. He also goes through my banking and emails constantly. I can not work as our grandson has trauma related issues and sees numerous doctors and psychologists.
I don’t want to loose my house, where do I stand, as I have to pay if anything needs to be fixed or replaced. Please help
I’m sorry to hear about the challenges you are facing. Given that your inheritance was used to pay off the mortgage and make improvements to the home, coupled with your non-financial contributions to parenting and homemaking, these factors could significantly influence the division of assets in your favor. It is strongly recommended that you seek legal advice tailored to your specific circumstances to better understand your rights and best ways to protect your interests moving forward.
My wife and I have been married 3 years. I bought our home and although her name is on the mortgage she never contributed to it. She has teenage kids from a previous relationship. We both work but my salary is more than hers. I have payed for a lot for her and her kids. She says she is entitled to half of everything. What will happen?
The outcome of a property settlement will depend on several factors, including the relatively short duration of the marriage which often makes it easier to assess and quantify individual contributions. The court will consider initial financial contributions, such as your purchase of the home, as well as ongoing financial support for the household including your payments towards the mortgage and household expenses. Non-financial contributions, like homemaking, are also evaluated. It’s a common misconception that there’s an automatic entitlement to half of everything; rather, the court aims for an equitable split based on all contributions. Consulting with a family lawyer is advisable to clarify your rights and understand potential entitlements.
We have been separated for over a year. Ex is remorseful for what he did in our relationship. So he wants to give me the house and won’t keep our joint savings and wants to give it to me. Been together over 2 decades and I am 100% solely raising our minor children.
What can we do to finalise this arrangement?
I feel that if we do it by court order, we will be told that for practicality effect I still have to give him close to 50%. Bit he wants none of it.
He actually had it hand written already and signed that he wants to have all the assets and joint savings.
But I couldn’t just transfer the house title easily to my name.
What do I do?
Hi Maria, if you and your ex-partner have reached an agreement on the division of property you can formalise this arrangement through a Binding Financial Agreement (BFA). A BFA allows both parties to agree on the terms of property division without court intervention. However, you and your ex-partner must both receive independent legal advice to ensure the agreement is valid and enforceable. This independent advice is necessary to formalise the BFA, and it’s important to note that his lawyer might advise against the terms you’ve agreed upon but will review them to ensure they comply with Australian law.
Hi,
My wife and I have been married 38 years. During that time, we have had several houses and for the 1st 2 houses, I made all payments.
My wife has been a stay-at-home mother to raise our three children.
During this time, my wife received an inheritance which she used to:
1. Pay the remaining balance on the 3rd property and put in a pool
2. Buy a house in her name on the main property we live in. I borrowed money to finish the house ie pool etc.
I have paid for all her cars during our marriage and up until recently all repair and maintenance work to the properties.
We have rented house no 3 for approx 20 years now that I have NOT asked for any benefit. I considered this her income.
Both houses are worth about the same.
I understand about super etc and splitting the cost for this and money I have made in my company which I shared equally with her.
I am very lost when it comes to the final split. I thought just a 50/50 split on the other house would be substantial which she has agreed to but I am being told I should also be entitled to money on the property that she bought with an inheritiance. I didn’t think I would be entitled to anything except for the money I borrowed to finish this house. I just don’t understand how the asset pool works. Are the assets all added up then the contributions that each party made taken into account then the money split thereafter? or is it pro-rated. ie If she bought the house we live in she gets the lot.
An example of this.
Our current house (no 4) that she bought with the inheritance is worth about $1,800K. The house when she bought it was $400K. Is she entitled to 100% of this value ie 1.8m or am I entitled to anything. I have put in about $100K plus paid most bills and rates etc.
Hi Neil, the division is not strictly pro-rated or automatically 50/50. The court aims for a fair division that reflects each of your overall financial and non-financial contributions to the properties and the marriage. Given the complexity of your situation, especially with long-term marriage, mixed contributions, and multiple properties, it is best to consult with an experienced family lawyer who can thoroughly review your financial history and provide a clearer understanding of likely outcomes from a property settlement.
Hi, my husband and I have been together for 14 years and we’ve been married for 10 years. My husband and I are going through separation. I’m a stay at home wife, I mostly do the cleaning, dishes and washing. My husband will only do some cleaning when I’m not around (visiting family abroad). We both do the cooking. He is the breadwinner of the house. The house is under his name and he’s the one paying all the bills and mortgage. My concern is, when we go through divorce am I entitled to get anything?
Hi Carmina, given the length of the marriage, your financial dependence upon your husband and your non-financial contributions to the household, you would likely have some entitlements. To get a clearer understanding of your situation and potential outcomes, please don’t hesitate to contact our office and arrange a consultation with one of our solicitors.
My ex-wife and myself were married for 18 months and she then decided to leave me .I have 140000$ in my account whist she has 280000$ in her account .We have a 5 year old as well.We are currently going through separations and my ex-wife have filled a property order .We dont share any property together.Would the split be 50/50 and in that case will she be asked to pay me ?
The division of assets during a divorce is not automatically a simple 50/50 split, but instead factors in the duration of the marriage, the contributions made by each party and future needs. Given that your marriage lasted for a relatively short period, the court will more closely examine both direct financial contributions and non-financial contributions (such as childcare) made by each of you when determining a fair division.
Hello. My estranged husband and I were married for 21 years until I ended the relationship 2 years ago due to his infidelity. Our 15-year old son lives with me full-time and attends a private school. My husband pays for his education fees and provides child support. For 12 years, I was a stay-at-home mom, but I now work full-time. However, my husband is a very high-income earner with significant funds in his superannuation (almost three time the balance of mine). Before we were married, he owned a home that we lived in for a year, but it was sold three months after we married. Since that time, we have rented throughout our marriage and now live separately. Given that we do not own a property, can a property settlement still be established for a share of his super and other assets such as his business, our cars, stocks and shares, furniture, jewellery etc?
Yes, a property settlement can be established even if neither party owns real estate. In Australian law, the marital pool for property settlement includes all assets and liabilities, not just property. To better understand your entitlements in this situation, please feel free to contact our office directly.