Following the breakdown of a marriage, separated or divorced parties must agree on how to divide their joint assets. As the division of property and finances is not included in a divorce order, a separate agreement must be made between you and your husband.

Reaching an amicable agreement with your husband about the division of joint assets will save you time, money and stress. Alternative dispute resolution processes such as mediation can assist in resolving any disagreements that may arise during this process.

If you cannot reach an agreement with your husband through these means, you can apply to the Federal Circuit and Family Court of Australia (‘the Court’) to have financial orders made that will settle the dispute for you.

What is a financial order?

A financial order is a set of orders made by the Court relating to the division of property or finances. When applying for a financial order, the Court will hear evidence presented by you and your husband and make a just and equitable decision. This decision may include altering property interests, redistributing finances, and ordering for the payment of spousal maintenance.

What factors affect the Court’s decision?

Contrary to the belief of a 50/50 split, there is no established formula or percentage the Court will use when making financial orders. Instead, decisions are made on a case-by-case basis depending on the individual circumstances of the separated parties.

The Family Law Act 1975 (Cth) s 79(4) sets out a number of factors for the Court to consider when making financial orders. These factors include but are not limited to:

  • The ‘net asset pool’ comprising of the current value of all assets and liabilities. This includes superannuation entitlements, personal assets, assets in partnership, trust, or companies.
  • Direct financial contributions toward the acquisition, conservation or improvement of any property of each party. This includes assets owned at the beginning of the relationship.
  • Indirect financial contributions such as gifts or inheritances.
  • Non-financial contributions toward the acquisition, conservation or improvement of any property of each party. For example, home improvement or renovations to increase the value of the family home.
  • Financial contributions made to the welfare of the family, including any contribution made in the capacity of a homemaker or parent.
  • The future needs of each party with regard to age, health, financial resources, superannuation, childcare, and earning capacity.

The Court’s decision may involve the alteration of property interests and asset ownership to allow for the just and equitable redistribution of finances between parties.

Am I required to pay my husband spousal maintenance?

Spousal maintenance is financial support that is paid to your husband if he cannot adequately support himself following separation or divorce. This obligation depends on the financial capacity and needs of each party. Husbands and wives share an equal duty to support and maintain one another should the circumstances call for it.

For example, if your husband is unable to support himself after separation, and you have the financial means to support him, you may be required to provide your husband with spousal maintenance.   

Ultimately, an order for spousal maintenance is decided by an overall assessment of each party’s ability to adequately support themselves, and if they are unable to do so, whether the other party has the capacity to meet those expenses and support them.

Contact Us

It is important to remember that there is no presumption of equality when dividing assets following a separation or divorce. If you are considering separation, or have already separated from your husband, we recommend seeking independent legal advice.

If you would like to discuss your unique situation with a family lawyer, please contact Etheringtons Solicitors in North Sydney on (02) 9963 9800 or via our online contact form.