The average age of divorcees in Australia is gradually rising, disrupting the retirement plans of many Australians who after decades of marriage, did not expect to find themselves to start over independently later in life.

Dividing Assets upon Divorce

Dividing the assets of any marriage places a mental and emotional strain on everyone involved. If you are older and have already left the workforce, you may face additional anxiety about how you will recover financially. The most valuable assets to divide are often the family home and superannuation.

Where a couple divorces later in life, the case will usually not involve questions of parenting. Instead, the division of assets can focus on protecting the children’s inheritance.

The Importance of Contributions to the Marriage

Over the course of a long marriage, each party will make different financial and non-financial contributions to the relationship, and these must be assessed when dividing the assets following a relationship breakdown in accordance with section 79 of the Family Law Act 1975 (Cth).

In many long-term relationships, the courts will find that the parties’ contributions were roughly equal, even though there is no formal legal presumption to this effect — the High Court of Australia confirmed in Mallet v Mallet (1984) that equality is not a starting point under section 79. In practice, however, long marriages often involve one party making a greater financial contribution while the other makes a greater homemaking and parenting contribution, and courts frequently find these to be of equal value once considered together, before adjustments are made for other factors such as spousal maintenance or family violence.

That said, every case must be considered on its own facts, and there are circumstances where the parties’ contributions will not be found to be equal, including where one party has:

• Brought considerably greater assets to the relationship than the other
• Contributed substantially more by way of inheritance, gift or other settlement
• Demonstrated special skills or talents that generated substantial assets during the relationship or
• Behaved in a deliberate or reckless manner resulting in a loss of assets.

These factors recognise that, while a long-term relationship is ideally an equal partnership of shared contributions, there are circumstances in which a  50/50 division of the assets would not be a realistic expectation.

Legal Advice

Etheringtons Solicitors can assist couples with splitting joint assets in accordance with each party’s contributions through a Consent Order, where a formal written agreement can be made between the parties, or through a Court Order.

Contact Us

If you are going through a separation and need to speak with an experienced family lawyer about dividing assets, please contact Etheringtons Solicitors in North Sydney on (02) 9963 9800 or via the contact form. We have a long history of successfully dealing with complex family law property settlement matters and are ready to assist you.