How is property divided after the end of a marriage?

by The FindLaw Team

After children, perhaps the most pressing issue when a marriage comes to an end involves the division of property. The property the court is able to deal with must arise out of the “marital relationship”, as outlined in s 4(ca) of the Family Law Act 1975 (Cth) (the Act).

One of the things to keep in mind before further exploring the topic, is that a divorce order does not include the division of property.

What property can the court deal with?

Some of the properties that the court can deal with may include:

  • property purchased during the marriage;
  • property owned by the parties before the marriage;
  • assets built up in a business;
  • gifts and inheritances received by either party;
  • superannuation;
  • redundancy;
  • compensation.

When talking about property in relation to trusts or a company, the court may treat such property as belonging to one of the parties if it appears that they have benefitted from the ownership of the trust or company.

What property may not be dealt with by the court?

The court for the most part, cannot deal with property for future expectation in relation to trusts or wills – unless there is a level of certainty of the receiving of the benefit or inheritance.

Additional property that may not be able to be dealt with, may involve entitlements relating to long service leave, or actions involving personal injury – unless the spouse nursed the other party through their injuries.

How does the court decide on what property orders to make?

When dealing with property settlement proceedings, s 79(1) of the Act states that the court may make an order it considers appropriate.

There is no hard and fast formula on how the court makes a decision, however, some of the factors that may be looked into when making an order can involve the property that the parties hold and consideration into the contributions by each party to the marriage. Additionally, the court will consider the present and future needs of the parties, and whether the division is just and equitable.

How are contributions measured?

In assessing the contributions made to the relationship, the court can look beyond tangible contributions, and may also take into account indirect contributions, such as the contributions made to the welfare of the family, and the maintenance of the household.

This piece is only a general outline in relation to property division. However, if you require any assistance, please seek the help of a legal practitioner.


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