Following the breakdown of a marriage or de facto relationship, it is required for separated parties to consider how to divide their common property. It is crucial to understand each party’s ability to claim entitlements in a property settlement and the assets they are likely to retain.
Family Law is a complicated and emotional area of law which is often poorly understood. This is reflected in a great quantity of inaccurate statements often regarded as fact by those in the community. This page will provide you with an understanding of the factors a Court will consider to resolve a property settlement dispute.
Contrary to popular belief, there is no presumption that assets should be divided 50/50, 60/40 or in any other subjective proportion. The Federal Circuit and Family Court always has full discretion to divide property in a proportion that is just and equitable for both parties.
People often receive ‘advice’ from well-meaning friends or family as a result of their own experiences. However, no two cases are decided the same and there is no presumption of any kind in relation to a financial settlement when it comes to percentage entitlements. Comparing another person’s property settlement outcome to your own can be misleading and can be unhelpful when it creates a false expectation of entitlement.
Each divorce and property settlement situation is different and should be carefully assessed by a Family Lawyer qualified to provide you with proper advice.
Superannuation is commonly included in property settlement matters. If parties have superannuation entitlements, they can be dealt with as part of the same property settlement. This may be undertaken by way of an agreement between the parties, which can be implemented through Consent Orders or a Financial Agreement, or by the intervention of the Court and obtaining court orders.
However, it is important to note when dealing with a superannuation interest, the first step is to ascertain the value of the superannuation interest. In most situations, this will be done according to various methods set out in the Family Law (Superannuation) Regulations 2001. A particular method to be used in each individual case will depend on the superannuation fund. If the parties are dealing with a fund for which there is no specific method of valuation provided in the Regulations, the Court will determine the value as it considers appropriate. Once the superannuation is valued, it is included in the matrimonial property pool (assets that arose out of the relationship) either amongst the other assets or as a separate list, depending on particular circumstances.
Once the superannuation fund is valued, it can then be ascribed a value in the matrimonial property pool and can be dealt with by way of a consent order. A consent order is a written agreement that is approved by a court. A consent order can finalise financial arrangements between the parties, a consent order can either contain provisions that the parties either retain their superannuation entitlements or whether a portion is to be split to the other party. In the event that the superannuation entitlements of one party are to be divided, this is to be carried out by way of a ‘splitting order’.
A splitting order allocates either an amount or a specified percentage from that party’s superannuation interest to the other party, which subsequently directs the trustee of the superfund to transfer their newly created entitlements into a separate superannuation scheme.
In some cases, it is impractical to determine the splitting of superannuation entitlements at the same time as other property issues are being settled. For example, such determination may need to be postponed until a later stage in the proceedings because of certain difficulties with respect to the valuation of a particular superannuation interest. However, there may still be a need to protect the interest in question from being disposed of, which may occur in a situation where the member of the fund is in a position to access his or her entitlements.
It is important for anyone considering separating from their spouse, or who has already separated, to obtain independent legal advice from an experienced Family Law practitioner about their likely property settlement entitlements.
If you would like advice, guidance or assistance regarding your divorce or separation related property settlement entitlements following the breakdown of a marriage or relationship, contact Etheringtons Solicitors.
Paul Etherington is the Principal and founder of Etheringtons Solicitors. In 1989 Paul commenced practising as a sole practitioner and with vision and strategy, the firm has grown to become a highly regarded legal practice, located at North Sydney.
Eleni Tsoromokosis is a passionate and pragmatic lawyer with experience in a wide range of family law matters. She has provided extensive expertise in both parenting and financial matters since joining Etheringtons Solicitors.
In parenting matters, Eleni’s experience ranges from facilitating and negotiating equal or substantial time arrangements to more complex matters such as Hague Convention (international child abduction) applications and child abuse and risk.
In financial matters, Eleni’s expertise spans from modest property pools to complex business structures. Eleni has also managed high asset property pools and complex financial arguments and divisions.
I used Etheringtons for my divorce proceedings, which unfortunately was my part-time job for about 20 months. I was very impressed with the professionalism and attention to detail and very grateful for the personal attention. I benefited from all the resources of a decent sized law firm.
Thanks for your pragmatic advice and especially your desire to help.
Amazing! Paul, thank you once again for being by my side in another momentous moment in my life.
All the best,
Thanks once again for your help with settling this matter. Your prompt and expertise in handling this difficult situation is much evident and appreciated.