How It Works
The court, and we as your lawyers, go through a four step process to determine the “who gets what” question. This is a broad overview to give you the background of the court’s approach and what we need from you to resolve your matter quickly and correctly
Step 1 Assess the Asset Pool
Think of all assets and liabilities of you both and list them. “property” can be real estate, bank accounts, furniture, shares, pre-marital property, partnership in a business, inheritance, long service leave in some cases, overseas property, assets already sold.
Once we have the “Schedule of Assets and liabilities” we deduct the liabilities from the assets to obtain the net asset pool. That is the asset pool capable of division and the percentage of that pool you receive will be determined by the following steps.
Step 2 Assess the Contributions
We need effectively your story of the relationship as it relates to the assets and liabilities.
We need to know the direct financial contributions to that asset pool (did someone pay the deposit for the house, the mortgage repayments, bank savings alone etc). Then we need the non-financial contributions made directly or indirectly to the acquisition, conservation or improvement of any property of the parties.
After we have the above information from you we can give you guidance on whether one party or another is likely to be given a higher percentage due to their contributions.
Step 3 Section 75(2) Factors – Often called the “Future Needs Factors”
There are a number of factors under section 75(2) of the Family Law Act that the court, and of course us, must then take into account in determining whether there should be an adjustment to the percentage division arrived at above.
The most common factors considered in this step and the questions we ask include –
The age and state of health of each party. Is one party due to retire, or is inform and cannot work?
The financial position of each as to income. Is there a disparity of income, earning capacity and financial resources?
Whether a party has care of a child. Does a party have primary care of a child of the relationship?
Step 4 What Orders should be made for a Just and Equitable Outcome?
Once we establish and consider the result of the above three steps we consider if that result would in all the circumstances be “just and equitable”.
As part of this step we assess what practical order is best achieved for your particular circumstances. Rather than simply sell everything and divide in accordance with the percentages above, we explore a multitude of options that can provide a more equitable outcome. That may involve a greater or lesser amount of superannuation to allow a higher cash settlement. Or a delayed timeframe to settlement to achieve an overall just result.
How can we help you with Property Financial Settlement?
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