A 50-50 split is not the starting point
Movies and television shows will often make reference to the (false) concept that on divorce you automatically must give half your property to your ex-spouse. In Australian family law, there is well settled case law that states the Federal Circuit and Family Court is not to assume a 50-50 split as the starting point. In order to determine what is a just and equitable division of assets on the breakdown of a relationship, the family law court goes through what is known as the "four step process".
Step 1 of the four step process in family law is to identify and value the assets, liabilities and financial resources of both parties. This usually involves obtaining valuations of real estate, and the disclosure of financial documents such as bank and superannuation statements.
Step 2 of the four step process involves an assessment of the contributions made by each of the parties to the marriage or de facto relationship. Initial contributions (being what each party brought into the relationship), contributions during the relationship, and post-separation contributions are all relevant. The assessment is not limited to financial contributions alone. Non-financial, parenting and homemaker contributions are all part of the family law court's assessment.
Step 3 of the family law four step process involves the court considering whether any additional adjustment should be made to one party or the other due to factors such as the age and health of each party, whether either party will have the ongoing care of minor children, any income earning disparity, or one party having access to greater financial resources than the other. This step is sometimes referred to as "future needs adjustment" or "section 75(2) factors" (being a reference to the applicable section of the Family Law Act)
Step 4 of the four step process in family law requires the court to ensure that the proposed orders are just and equitable in all the circumstances.
Are women given preferential treatment in family law?
It does appear statistically that women do achieve slightly better outcomes in family law proceedings. The Australian Institute of Family Studies published a study in March 2001 titled "Division of Matrimonial Property in Australia" which found the following:
- women received an average split of 55% in their favour
- women received a split of 60% or greater in 42% of cases
The reality is that the Family Law Act does not favour one gender over the other. While women may statistically achieve slightly better results on average, each case is fact specific. The court also exercises a broad discretion, particularly in the assessment of section 75(2) factors (step 3 - future needs adjustment).
Leaving family law asset division in the hands of a judge can be both a risky and an expensive proposition. The only way to ensure that your family law property division is something that you can live with is to negotiate a mutually acceptable compromise with your ex-spouse or partner. Mediation and Family Dispute Resolution services can be of great assistance during the negotiating phase. Once an in-principal agreement has been reached, it should be formalised through consent orders or a binding financial agreement. Specialist legal advice should be obtained from an experienced family law solcitor.
