Division of Assets: How much am I entitled to?
Due to the discretionary nature of the Australian Family Law system, it is almost impossible for family lawyers to tell their client how much they will get when their property case is settled. Lawyers can give estimates based on similarities and differences between previous cases but no lawyer will be able to tell you exactly how much you will get. Why is this?
Three discretionary steps of the Court process
All property settlement cases start with identifying the property pool of the parties. This first step already involves some degree of judicial discretion as ownership of all matrimonial assets are not as straightforward as for example the family home that in the parties own as joint tenants. Judicial discretion come into play when assets such as discretionary family trusts and inheritance are involved. More on the treatment of inheritance can be found here.
Secondly, the Australian Family Law system will divide your assets based on the contributions you have put into the relationship. To understand the different types of contributions we encourage you to watch our video where contributions are explained in more detail. As no one case is similar, one judge may put more weigh on a specific contribution than another, however, due to the wide discretion of the Court, both findings are equally just.
Lastly, the Court will need to assess the future needs of both parties, such as financial resources, earning capacities and carer responsibilities. Based on these considerations, the Court may adjust the property division even further. So even if the division based on contribution was 80:20, the Court may adjust this to 70:30 or to 75:25 after considering the future needs of the parties, and remember there is no presumption of a 50:50 division in Australia.
Three points to remember:
A lawyer will not be able to tell you your exact entitlement as the Court has an extremely wide discretion in making orders for property division.
Property settlement is a three step process where the history, present and future are taken into account.
Australian Family Law system is based on contributions, there is no presumption of a 50:50 split.