In relation to the property settlement if the property is in Australia the law will apply the following steps
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.
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