There is no concept of “community property” in Australia. Each property settlement has to be assessed on its own unique facts. There are a number of steps to consider and 3 of these are listed below.
- Identify the pool of property available for distribution. This involves adding up the value of the assets, taking away the amount of the liabilities, and adding back any relevant funds or assets that may have spent or disposed of or sold. This may sound mathematical and straightforward but often the biggest problems arise in relation to this step. There may be valuation issues, disputed items and undisclosed assets.
- Assess what percentage range each party should receive for contributions. Contributions take into account financial, non-financial and homemaker/parent contributions. Some of the relevant considerations at this step are whether either party brought any assets to the marriage/relationship, whether either party received any inheritances or other “windfalls” during the marriage/relationship, the length of the marriage/relationship, and the circumstances for the parties and the children since separation. There is no formula to working out the percentage as each case is based on its own unique factors. Except in cases where it is a clear 50/50%, a lawyer will only ever be able to give you a range of percentages.
- Assess other factors to determine whether there should be an adjustment to percentages reached at step 2 based on these factors. There is a long list of factors to be considered (for marriages at section 75(2) and for relevant de facto relationships at section 90SF(3) of the Family Law Act 1975). Those that are most commonly relevant relate to the care of the children of the marriage/relationship, the respective earning capacities of the parties, and the age and state of health of the parties. Again there is no formula, and a lawyer will usually give a range of percentage adjustments.