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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43252
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I owned my own home before married. We moved out of my home

Customer Question

I owned my own home before married. We moved out of my home and now live in another state. How do I work out his percentage entitlement when the home has been rented and he hasnt contributed to the mortgage. I also have 26 years of superannuation, I was married for one week before I left this employer. Would he have an entitlement to this as we were only married one week before it ceased. I have not rolled it over to my current super with my new lawyer.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Morning,

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

It is not a simple matter to work out the split.

The law applies the following steps. These are applies even if you reach an agreement outside the court and file for consent orders.

The steps are:

1. Consideration of whether a property settlement is necessary

The first important consideration for the Court is to determine whether or not it is actually necessary to proceed with a property settlement.

In the vast majority of cases, the Court will decide that it is just and equitable for there to be a property settlement or a change in the ownership of a property. However, in some cases, the Court will decide that each party should simply keep what they presently own.

This may be because:

  • the parties have decided to keep their financial affairs and arrangements totally separate throughout the relationship;
  • the relationship was of a very short duration; or
  • the parties separated many years ago and have organised their affairs on the basis of an informal agreement since that time.

2. Identify and value the assets and liabilities

This involves compiling a list of all assets and liabilities (including superannuation) that are in the individual and/or joint names of you and your former spouse/partner, and attributing a value to them.

Values can be approximate or may be determined by way of a formal valuation, as they should be as accurate as possible. The result should be a table of assets and liabilities which your solicitors will use to determine the value of the total asset pool to be divided.

It is also standard practice to establish what the asset pool was when you first started living together (which may have occurred prior to marriage) to work out any increase in asset values and to establish what each party brought into the relationship (referred to as initial contributions).

3. Assess contributions

Once an asset pool has been established, your solicitor will ask questions about each party’s contributions to the asset pool.

Contributions can be:

  • financial (such as by way of income, mortgage payments or inheritances);
  • non-financial (such as labour to undertake renovations); or
  • by way of being a homemaker and parent.

Contributions are usually calculated as a notional percentage, such as 50/50 or 60/40.

4. Assess “future needs”

Once contributions have been assessed, your solicitors (or the court) will consider what are referred to as the “future needs” of both parties. These include:

  • the age and health of the parties;
  • the earning capacity of the parties;
  • whether one party will have the care of young children;
  • the duration of the marriage or relationship; and
  • any other relevant consideration.

The assessment of future needs will impact the notional percentage reached in Step 2, so that the percentage split of the asset pool may increase or decrease in favour of one or other of the parties to take into account any relevant future needs factors.

5. Is the division of assets just and equitable?

Taking each of the previous steps into account, your solicitors, or the court, will then consider whether the final division of assets as proposed by the parties is just and equitable in all of the circumstances. This may involve assessing the practical effect of any proposed division of the asset pool.

It is form the following link

http://www.landers.com.au/publications/family-and-relationship-law/property-and-financial-settlements-following-separation-or-divorce/

It is all assets and liabilities of both of you that are taken into account not just one parties.

Everything is take into account.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon