It’s difficult to precisely assess what someone would get by way of a family law property settlement, without certain information.
This question is best answered by assessing:
- The assets and liabilities obtained through the relationship.
“Assets” include everything that has a value, including property, cars, caravans, furniture and superannuation
“Debts” are defined as anything that you owe, including mortgages, credit cards, personal loans and loans from family members.
An overall settlement can only deal with the net assets. That means we must total the value of the assets and subtract the debts.
For example, if the assets have a value of $1,000,000 and the debts total $500,000 the amount of assets that can be divided between the separating parties is the difference, being $500,000. (i.e. $1,000,000 - $500,000 = $500,000 being the net assets).
The net amount (only) is what each party is entitled to as a percentage.
2. An assessment of each person’s contributions to those assets over the time of the relationship.
“Contributions” are broadly defined and can include:
- financial contributions (by way of an income, inheritance and/or monetary gift from a family member),
- non-financial contributions are best described as contributions that improve and/or conserve the family home such as painting the house, landscaping or renovations.
Contributions made as a home maker and parent. This includes being the primary carer for the children under the age of 18 and attending to the day-to-day running of the household including shopping, cooking, washing clothes. The contribution as a home maker and parent is treated very seriously and is often seen as just as important as a financial contribution.
3. What are the future needs of each person in the relationship?
The factors considered here include:
- who has the higher income,
- who will have the care of child/children under the age of 18,
- are there any health issues that may impact on the other person’s ability to work?
With the above information it is easier to assess what each person may receive by way of a family law property settlement.
Clients often ask what percentage of the assets will I receive? An assessment of 1,2 and 3 above allows us to estimate what the client’s overall percentage may be.
Example.
- Mrs and Mrs S were married for 15 years, and they have 2 children P and L aged 12 and 10 years.
- During the relationship the husband was the primary financial contributor and the wife was the primary home maker and parent, but she also worked part-time. The party’s non-financial contributions were even. Neither party has received an inheritance and/or a windfall during the marriage.
- Mrs S works part time as a nurse and earns $50,000. She has super totalling $50,000.
- Mr S is employed as an IT manager and earns $150,000. He has super totalling $150,000.
- The children will reside with their Mother after separation but will spend regular overnight time with their Father for approximately 5 nights/ per fortnight, and half the school holidays.
- The parties have assets (house, caravan, two motor vehicles, furniture and chattels) totalling $950,000. They have a mortgage, credit cards and a Myer store card totalling $250,000. Therefore, the net assets total $750,000.
- Given the children will remain primarily with their mother, and Mr S has a superior earning capacity, Mrs S is likely to receive somewhere about 55% to 65% of the net matrimonial assets.
- Mrs S would also receive a superannuation split in her favour. Although superannuation is an asset, it is often treated differently.
In most cases there will be a 50-50 superannuation split. Based on the figures above Mr S has $150,000 and Mr S has $50,000 in superannuation. The total therefore is $200,000 X 50% = $100,000.
That means Mr S and Mrs S should each end up with $100,000 in superannuation. This is done by Mr S “splitting” (transferring) $50,000 from his superannuation fund into the fund owned by Mrs S. Mr S’s fund would reduce by $50,000, and Mrs S’s fund would increase by $50,000. A superannuation split can only be done by way of Court Order, or a Financial Agreement, and neither party has access to the money until retirement.
St. John Heath
Disclaimer.
