Deciding the Marital Pool of Assets in Family Court Proceedings

By 25 May 2018Family Law

In Australia, the Family Court has a broad power to make orders for division of the marital assets. As required under s79(2) of the Family Law Act 1975 (the “Act”), the Court must be satisfied that it is just and equitable to do so.

There is no presumption of division of the assets between husband and wife on an equal basis.

For years the approach taken by the Court to determine the division of assets was to follow four steps noted in s 79(4) of the Act:

  1. Identifying the assets and liabilities of the parties including, real estate properties, superannuation, shares, loans and other assets and liabilities held personally by the parties, in trust or legal entities.
  2. Identifying the contribution of the parties to the maintenance and improvement of any of the assets including non-financial contributions as a parent or home-maker;
  3. Identifying the requirement of any adjustment that may be required for special or future needs of the parties such as caring for the children, age, health and earning capacity; and
  4. Ascertaining that the order made is just and equitable.

However the High Court has since introduced a new approach to the division of the marital assets in its 2012 decision of Stanford v Stanford.

The Majority appeared to refuse to look at the fourth step as a final stage in the process of property division decision making, saying that the need to determine whether it is “just and equitable” to make an order under s79(2)  should be considered prior to and not after the court looks at s 79(4).

The High Court’s suggested approach in Stanford v Stanford was that in making a decision for division of marital properties the court must first consider the parties’ legal and equitable interests rather than their properties and then make a decision whether it is just and equitable to alter those interests.

Stanford had a particular set of facts and it was clear to the court what Order should be made in that case. The Court’s approach will also be reliable on the facts of each case.

Further, there are many other factors that will be relevant in property proceedings such as the size of the assets, gifts, inheritance, special contributions by one party and domestic violence.

Family law is a diverse and fast developing and area of law and property proceedings can be very stressful for the parties

Family Lawyers Sydney at Pavuk Legal can assist you with legal advice in relation to your family law matters. In Particular we can assist you with division of your property by calculating:

  1. Your assets (what you own) prior to the commencement of relationship, during the relationship and after separation including:
    • Real estate properties
    • Share portfolios
    • Superannuation
    • Vehicles
    • House Contents
    • Investment earnings
    • Prospective entitlements
    • Trusts
    • Business interests
    • Interest in a company
  2. Your liabilities (your debts)
    • Mortgages
    • Debts, including debts to family members and child support payments for a previous marriage
  3. Division of property on a percentage basis calculated on the merit of your case
    • Working out what you’ve got and what you owe, that is your assets and debts and what they are worth
    • Looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
    • Looking at indirect financial contributions by each party such as gifts and inheritances from families
    • Looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
    • Future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn

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