Winter Newsletter - Divorce and Seperation "Who Gets What"?

“Who gets what?”

“We are separated but not divorced. Can we do our property settlement?”

Yes, you can. A separation can involve divorce, a property settlement and parenting issues. Each can be dealt with separately, although it is often a good idea to try to deal with property and parenting at the same time.

Property settlements can even be arranged before an actual separation - the most common example being where a couple who have agreed to separate put their home up for sale, stay together until the sale is completed and then each take their portion of the proceeds and go their own way.  

“We have agreed on our division of assets. Why do we need to do anything formal, why can’t we just do it?”

The usual ways of formalising an agreement are by either what is known as a “Binding Financial Agreement” ( a BFA ), or by “Consent Orders of the Family Court”

There are certain legal requirements for a BFA to be binding, including certificates of independent legal advice. Consent Orders are obtained without any actual court attendance, by completing the Application and sending it to the Court. Most lawyers will recommend consent Orders for a number of reasons.

Once Orders are made, they are final- no second bites of the cherry except in very special circumstances such as fraud or duress.

Unless you have either a BFA or Consent Orders, any arrangement is not binding, and there is a period of 12 months after a divorce in which to lodge a property application to the court. Even that period can be extended, so if you want a degree of certainty, you need Orders or a BFA.

There are other advantages. If you have Orders or a BFA, there are stamp duties exemptions on a property transfer, and there can be Capital Gains Tax benefits. If you are going to adjust superannuation between the two of you, that can only happen if you have a BFA or Consent Orders.  

“How do you work out who gets what?”

In the 35 years since the Family Law Act was introduced, the courts have set out the principles to be applied, which are well known to all experienced family lawyers.

The assessment of what should occur involves a 4 step process. 

•Step 1 is to prepare a balance sheet of the family’s assets and liabilities. It does not matter in whose name a particular asset or debt might be, and you do a separate lit for superannuation.

•Step 2 is to look back to the past to assess each party’s contributions, which are both financial and non-financial. In a typical Aussie family with children, Dad has probably been the major earner, and Mum the major parent and home-maker, and those contributions would usually be seen to be equal. Adjustments would be made if one or the other had special contributions such as parental gifts or inheritances. Step 2 would produce a percentage for past contributions, such as 50/50. Or 60/40.

•Step 3 looks to the future, to needs and responsibilities. The most common factors leading to adjustments are ongoing primary parenting, and discrepancies in earning capacity, although there are others. If there are Step 3 factors present, the Step 2 outcome is then adjusted, so for example if contributions under Step 2 produced a 50/50 result, a mother with 2 primary school children in her care might get an extra 10% for that.

•Step 4 requires an overall look at the outcome to see if it is fair and reasonable, but further Step 4 adjustments are not common.

Frank Boitano is the Family Law Expert and can help and guide you through your separation or divorce. 

For a consultation today please call him on 02 9630 0444 or email your enquiry to: