Are assets always divided 50-50 in a property settlement?

Rose Lawyers on 12 September 2016

People often search for "divorce lawyers for men" and "divorce lawyers for women" because they're concerned about how the court is going to treat their case based on their gender.

Men are often concerned that their ex-partner is going to take them for half of everything they own while women may fear that their contributions to the home and family will be overlooked. In reality, the Courts consider a huge number of factors when determining how to divide marital property.

Ideally, both party will get everything that they're entitled to when they go through a divorce. It may require compromises from both sides and legal assistances, but hopefully, everyone can come to an amicable agreement in the end.

Here is an introduction to how property is divided in a property settlement and the things that a Court will consider.

Consider your options

When you separate from your spouse or partner, there are a few different ways that you can divide your property.

There are three main ways to determine who gets what in a divorce. These are:

  1. Come to an agreement – The best option is always to come to an agreement with your former partner. This can be difficult and will require compromise and understanding from both sides, but it is by far the cheapest and fastest option. Once you have come to an agreement, you can have it formalised with a Binding Financial Agreement or Consent Orders.
  2. Get help through mediation – If you are unable to come to an agreement on your own, you and your ex-partner can attend mediation or family dispute resolution. These services can be very helpful in facilitating communication and allowing both parties to have their voices heard.
  3. Go through the Courts – Seeking property orders through the Family or Federal Circuit Court is the next option if you still cannot come to an agreement with your ex-partner. Every case is different, and the judge will consider all of the relevant information and evidence when they are deciding on a fair and just way of dividing assets.

It is always a good idea to consult with a divorce lawyer so that you understand your options and get legal support throughout the process.

What will the Court consider?

There are many different things that will impact how a judge will divide relationship assets during a property settlement; it's not as simple as just dividing everything in half.

The goal of the Courts will be to determine a fair and just way of dividing the assets. To do this, they will consider the following:

1. The length of the relationship

The length of the relationship is very important. Is this a thirty-year relationship where the parties now have three adult children and perhaps grandchildren? Or is this a year-long relationship where the parties may have been dating longer, but have only been in cohabitation for a short period?

A long relationship where the parties are ending in similar positions may result in a fairly even split. On the other hand, a short relationship may result in each party retaining the assets they brought into the relationship and any joint assets divided evenly.

2. Contributions made by each partner

stay at home mother with babyThe Court will consider both the financial and non-financial contributions made by each partner to the family, generally speaking, most people give varying percentages of both contributions. This is often a concern for people looking for divorce lawyers for women and divorce lawyers for men since nobody wants to have their contributions overlooked.

This means that a person who has worked very hard to provide for the family financially will have their efforts taken into account. People who have stayed at home during a relationship and looked after children, cleaned, cooked and shopped for the family will have their efforts considered as well.

3. Future earning capacity and financial needs of each partner

A person’s age and future earning capacity is another factor that the Court will consider. Where one partner is substantially older than the other, it will be taken into account that you may be past retirement age and unlikely to get a job or work much longer. You are also likely to have more medical expenses in the foreseeable future.

This also applies to a younger partner if it is agreed that you will have the care and control of the children. When this is the case, the first time you will have an opportunity for full-time work or study may not be until your youngest is at High School. The Court will recognise that your earning capacity is decreased.

Health is another factor that impacts future earning capacity. What if one partner has a disability or is in poor health? This may affect their earning capacity, or mean that they have ongoing medical expenses.

4. The finances of each partner

The financial position of each party is also considered. Does one party have large amounts of wealth in superannuation, savings, and shares? Does one party have an inheritance that they have maintained entirely separately from the family? Is one party earning enough to pay tax at the maximum rate while the other party earns close to minimum wage?

Divorce lawyers for women and divorce lawyers for men will both represent their clients diligently and protect their interests.

What does this mean for you?

Every relationship is different, and so the way in which relationship assets are divided in your case will depend on the unique facts about your situation.

Getting expert legal advice is essential so that you can protect your interests during a property settlement. At Rose Lawyer, we have the experience, expertise, and understanding to handling your case. Whether you're looking for divorce lawyers for men or divorce lawyers for women, we can help you.

For advice on property settlement for your case, call Rose Lawyers on 03 9878 5222.