The rate of divorce and separation has increased worldwide.
Many marriages end in divorce.
This can be attributed to various causes, including financial issues, domestic abuse, substance abuse, infidelity, and moral differences.
Sometimes, the couples simply drift apart. And Australia is no exception to this trend.
Around 56,000 divorces were granted in 2021. And according to statistics, 2.2 per 1000 residents end up with divorce in Australia.
Hence, one is bound to wonder, how are assets divided in a divorce, Australia? Yes, a divorce paves the way for mental and emotional turmoil. But you have to be practical. Especially if there’s a lot of money and assets at stake.
What you Need to Know for Divorce Settlement
Before we talk about divorce asset split, it’s imperative to know a bit about divorce laws in Australia.
The act for the principle of “no-fault divorce” was established in Australia in 1975.
IMPORTANT – you do not need to be divorced in order to have your assets divided. This is a common misconception. You can do your property settlement and split your assets anytime after separation.
If a couple wants to be granted a divorce, they have to submit evidence that they have been separated for a minimum of 12 months before they filed the application. So, the court does not really have any opinion or say on the reason for the divorce. It merely considers two factors.
- The two parties have no intention of getting back together
- It has been at least 12 months since the marriage broke down
To put it in simple terms, the court wouldn’t interfere if even one of the parties announces that they want to get out of the marriage as long as the separation is proved.
And now comes the important question of how are assets divided in a divorce in Australia.
It’s imperative to be practical and think about your financial interests.
Couples in Australia going through a divorce essentially have four options for the division of assets. These include,
A Non-Legal Arrangement
This is usually preferred when the divorce is amicable.
Both parties come to a mutual agreement about who gets what without any legal documentation.
Keep in mind that since there’s no legal documentation involved, one of the parties can later go to court to get financial orders as per the Family Law Act.
Not surprisingly, most divorced couples evade this arrangement, and lawyers will always advise against not documenting the legal arrangement.
A Binding Financial Agreement
This one’s a legal document that can be signed by the couple at any point in their relationship i.e. before the relationship, during the relationship, or when the relationship ends.
These agreements stipulate the terms of how assets are to be divided between a couple. The court cannot overrule the terms unless exceptional circumstances are involved.
You must have solicitors involved to do this type of agreement
Consent Orders
These are made when a divorcing couple agrees to how they want to split their assets and submit an application form to the Federal Circuit and Family Court of Australia detailing their asset split. The orders are filed in court and a Registrar will review and approve the orders.
Consent orders are a very common way for couples finalising their financial affairs.
Litigation – taking the matter to court
This one’s perhaps the most complicated. Couples only go down this road when they are unable to come to the same page on how assets should be divided.
In case of litigation, the family court decides how the assets and liabilities are to be split.
This process of a divorce settlement, Australia takes about 1 year and can be quite expensive.
Not only that, the couple has to attend court regularly.
People usually don’t opt for litigation unless no other option is available.
In Case Of Divorce, Who Gets What
If the parties cannot decide how the assets are to be decided, it’s left up to the family court to decide.
As per the law, there’s no strict formula for a divorce settlement in Australia.
Contrary to popular perception, there’s no 50-50 split rule. It’s not that simple since a variety of factors have to be considered. Let’s take a look.
The Assets Of Both The Parties
The court has to consider both the common assets and the liabilities while determining the division of assets.
What are the common assets between partners? Usually, they are,
- The family home
- Cars and other vehicles
- Personal property, including jewellery and collectibles
- Household items
- Savings
- Investment Properties
- Shares, Stocks, Mutual funds, and bonds
- Family trusts
Similarly, common liabilities that have to be taken into account during the process include
- Loans like personal or car
- Business loans
- Home Mortgage
- Credit card debt
The Length Of The Relationship
The court gives utmost importance to the duration of the relationship while determining how the assets are divided in Australia.
It’s quite possible that one spouse made a significant financial contribution to the marriage.
However, as time passes, the value of the initial contribution decreases. The longer a partner has spent their time as a stay-at-home spouse, the more their entitlement to the assets increases.
Children And Their Custody
This is one of the most crucial factors in a divorce settlement, in Australia. As per the law, the spouse who gets primary care of children under 18 years of age gets a major adjustment for their future needs.
The Details Of The Divorce Asset Split
“What is my wife entitled to in a divorce?” This is a question every husband wonders right before the divorce.
“What is my husband entitled to in a divorce?” This is a question every wife has upon separation.
The answer to BOTH questions is – there is no law in Australia that discriminates or allocates wealth based on gender.
Instead, it looks at the contributions and future needs of the parties
Owned a property before marriage
If a party owned a property before marriage, does it get split between the parties? This depends on the following things:
Did the other partner make any contribution to the property?
How was the property used during the relationship?
How long was the relationship?
Depending on the answers to these questions, if you owned a property before marriage, it COULD be included in the division of assets between two parties.
Example of property split with one party initially owning a property
Example 1: John owns a house worth 1 million dollars in 2014. He is renting it out, and the rent covers the mortgage repayments and outgoings. He is living in a rental apartment. He meets Jill in 2015 and married her in 2017, living in the rental apartment with Jill the whole time until they separate in 2019. In such a situation, the house that John had would not be included in the assets divided in a divorce.
Example 2: John owns a house worth 1 million dollars in 2005. He is renting it out, and the rent covers the mortgage repayments and outgoings. He is living in a rental apartment. He meets Jill in 2007 and married her in 2009, and they move into the house John owns.
The Process Of Divorce Asset Split
By now, you have a fair idea of how are assets divided in a divorce Australia.
Let’s say despite multiple attempts of negotiations; both parties are unable to come to a conclusion regarding property division. What process is followed then?
First things first, you must understand that divorce and property distribution aren’t part of the same legal processes.
Divorce is nothing more than a legal termination of a marriage.
Asset division and property settlement are the formal distribution of properties after the separation.
It’s quite possible for a couple to finalise the asset distribution while they are living together or before the divorce is finalised.
If the court is involved, there’s a four-step process followed to determine how are assets divided in a divorce.
1. Valuing The Assets
The first step is identifying and valuing the assets, liabilities, and financial resources of the couple. Keep in mind that all the assets are valued, including the ones acquired before and during the marriage and the ones purchased after separation.
Assets can be anything like cars, savings, real estate, lottery wins, properties, and so on. The superannuation benefits of both parties are also included in the pool of assets.
2. Analysing The Contribution Of Both The Parties
After valuing the assets, it’s time to consider the financial and non-financial contributions of both parties.
3. Assessing The Future Needs
The future needs of both parties also have to be calculated. Factors like age, health, income, and earning capacity of both partners have to be taken into account. Similarly, the care and support of children also have to be considered.
The court determines whether adjustments have to be made to the asset pool depending on the future needs of both parties.
4. The Practical Effect
Finally, the court will consider the practical impact of the property settlement on both parties. This is to ensure that one party is not left with an unfair hand of cards at the end of the settlement.
An Example Of How Are Assets Divided In A Divorce In Australia
We get it. It might all be too much for you to understand.
Let’s make things easier by giving you an example.
Let’s say there’s a couple with a net worth of $1,000,000 in their asset pool.
Assets
They share a house worth $1.5 million, a car worth $30,000, and another car worth $20,000. They also have around $50,000 cash in the bank.
Liabilities
They have a mortgage of $800,000 on a house and credit card debt of $30,000. The superannuation of the wife is $90,000, and the husbands is $140,000
The couple has been married for seven years. Prior to the relationship, the husband bought a property in Sydney worth $ 1 million dollars with a mortgage of $600,000 on it. Both parties were working and earning roughly the same amount, and they kept their accounts separate. They have a 3-year-old child together.
After the assets are identified, the contributions of both parties are analyzed. The husband had a higher financial contribution of 75%, while 25% of the financial contribution was made by the wife. Taking the length of the marriage into account, the wife was given a 5% adjustment.
A further adjustment was made for the wife as she has 9/14 nights of care for the child. The terms are finalised, and both parties got a significant portion of the total asset pool.
The division of the split was decided to be 65/35. Hence the husband got $650,000 while the wife received $350,000
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