An Australian legal guide to 50/50 property division in divorce

In some countries, the matrimonial assets are divided 50/50 post separation. In doing so, it is assumed that in the event of a marital separation, all assets are divided equally between the spouses. However, does this concept hold true in Australian Family Law?

By Samira Friis, Associate at Watts McCray Family Lawyers, Sydney.

In reality, division of assets after separation in Australia is based on a concept known as “just and equitable”. Under the Australian Family Law, the Court will consider various factors such as the financial circumstances of each party, each party’s contributions towards raising children, and their financial and non-financial contributions to the family.

When couples separate, there is no automatic law that divides all assets equally 50/50. Assessing the rights of each party requires a complex process and careful examination by a skilled family lawyer using the legal framework as a guide. Each party’s contributions to the marriage or relationship are assessed, and the future needs of both parties are taken into account.

Keep reading to learn more about property division in divorce in Australia.

Here are some examples where a 50/50 split may not be suitable:

1. One party brought a significant portion of assets into the marriage/relationship and there are no children involved.
2. Both parties jointly increased their assets during their shared life, had children together, and post-separation, the children primarily live with one parent.
3. There is a significant disparity in the earning capacity of the parties.

On the other hand, a 50/50 split may be appropriate in cases such as:

1. A long term relationship.
2. A short term relationship, with all assets acquired jointly during that time.
3. Both parties have similar incomes and no children.
4. One party brought in most of the assets, and the other takes primary care of the children post-separation.

These lists are not exhaustive and are merely illustrative of common scenarios. Each person has a unique situation requiring its own assessment. The legal method of determining asset division provides a process for handling assets, debts, superannuation, and financial resources at the end of a marriage or relationship.

Property division in divorce in Australia

Initially, the assets and debts of both parties, including superannuation and other financial resources, must be identified and valued. All assets, whether acquired before the relationship, during the relationship, or after separation (regardless of sole or joint ownership), are included. The valuation is done at the time of asset division, not at the time of separation.

In the second stage, an assessment is made of how each party contributed to the acquisition of assets. This assessment includes:

1. Direct and indirect financial contributions, such as income, initial financial contributions, inheritance, and gifts.
2. Non-financial contributions, such as structural changes to property, and starting a business.
3. Contributions as a homemaker and/or parent.

Any asset owned before the start of a marriage or relationship is considered an initial contribution. Then, an evaluation of the future needs of the parties is undertaken to allow for adjustments. Generally, the party with greater future needs receives an adjustment in their favour. For example, if one party has primary care responsibilities for young children, they may receive an adjustment. Ultimately, a determination is made as to whether the proposed division of assets, debts, superannuation, and financial resources is just and equitable.

Both parties should consult with independent lawyers to seek advice in relation to their rights in a family law property matter. If you have further questions regarding property division in divorce in Australia and if property is split 50/50 in divorce, call us directly or request a call back from our friendly team by filling out the form below.