I left my husband (married for 34 years) on 13/9/2011 without…

Are you able to tell me what direction I should take?

Thanks for that. Should things not work out, then you have two options.

If you think you can agree with your husband on who should get what, then you can enter into a Binding Financial Agreement with him which will determine what will occur to the marriage property upon your separation and divorce (ie.) how it will be divided up. These agreements are recognized under section 90B of the Family Law Act (Cth).

Provided that the Family Law Act is complied with in compiling this agreement, including having both you and your husband receiving separate legal advice and your solicitors signing a certificate which is attached to the agreement, then the agreement will be enforceable upon your separation and divorce.

Without this agreement you or your husband would need to apply to the Courts for property splitting orders. The Courts would then apply a four step process to determine what percentage split will apply to the assets built up over the course of the marriage.

Step 1: Determine what the assets are and their value

This will include all assets and their value as at the day that you are dividing them. It does not matter whose name the assets are in, they will form part of the matrimonial pool. Superannuation entitlements are also included.

Step 2: Determine what contributions you and your husband made towards the assets.

This includes a consideration of both financial and non-financial contributions. Consideration is given to what assets each of you brought into the marriage as well. The weight given to your initial contribution will be dependent upon the length of your relationship. The longer the relationship the less weight given to the initial contribution.

As this is a 34 year old marriage there would be minimal consideration of the initial assets each of you brought into the marriage.

Step 3: What are each of your future needs.

Consideration is given to your respective ages, your comparative income earning capacity as well as other factors.

If these things don't balance equally for each of you, then the Court would make an adjustment in percentages.

Step 4: Make an order that is just and equitable between both spouses

The Court would look at how to divide the assets to achieve the percentage division arrived at after the first three steps. Such as whether the house should be sold or retained by one spouse who pays the other out, does there need to be a superannuation splitting order, etc.

It is not possible to provide you with a percentage range of expected property settlement without a proper consideration of all the factors in each of the four steps set out.

As such, if things don't work out, I recommend that you make an appointment with a family law solicitor for a one to two hour consultation as they will then be able to provide you with initial advice of the percentage split to expect.

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