One of the most contentious matters during a family law separation or divorce is that of property settlement. As a no-fault divorce country, Australian courts do not question or consider who was at fault when a divorce occurs. Instead, the divorce and family law processes in Australia seek to ensure a fair and just procedure for both parties. This includes ensuring a fair and just property settlement following the breakdown of a relationship so that each party remains financially secure during such an emotionally challenging time.
To ensure that the property settlement is fair, it is necessary to value the assets of the marriage and consider the financial and non-financial contributions that each party has made. To determine how property should be divided after a divorce or a de facto separation, courts and family lawyers refer to the framework listed under the Family Law Act 1975.
In addition to financial and non-financial contributions made by each party, some of the other factors considered include:
- Future needs of each party which includes considering factors like age and health
- If either party has primary care of a child or children
- The capacity of each party to obtain gainful employmentÂ
- Whether either party has the responsibility to look after any dependents
- Whether each part can ensure a reasonable standard of living for themselves
- Other factors including child support obligations, and terms of any binding financial agreements.
What about inheritances during family law property settlements after divorce?
Inheritances can be included as part of the asset pool. It is important to check when the inheritance was received as this may influence whether or not the inheritance is considered as part of the property pool. For example, if the inheritance is received before the relationship, it can be considered in the asset pool as it is seen as an initial contribution to the relationship. Moreover, for inheritances received by a party during the de facto relationship or marriage, factors such as what the money was used for, and the intentions of the party who received the money become important considerations. For inheritances received after the relationship ended, there are various factors that can determine whether or not this is included. While there have been cases where this was excluded, there have also been family law cases where post-separation or post-divorce inheritance was included in the asset pool for property settlement.
Seeking legal advice
It is usually recommended that each party obtain independent legal advice from family lawyers to ensure that their interests are adequately represented. While family courts strive to ensure fair settlements, it is important to seek legal advice from expert family lawyers who can guide you throughout the court proceedings. Alternatively, family lawyers can also offer mediation services for out-of-court property settlements.
