What is my Husband/Wife entitled to in a Divorce?

To determine what your husband/wife is entitled to in a divorce, you must first understand the property settlement process.

Property settlement is the process by which the husband and wife’s assets, liabilities, and financial resources are divided or distributed following a separation or divorce.

Property settlement may occur before a divorce, within 12 months of a final divorce order being made, or at a later date if the Court grants permission to apply for property settlement orders out of time (in very limited circumstances).

The Court can make Orders for property settlement by consent of the husband or wife, or following contested Court proceedings.

Property settlement can be reached without the Court’s involvement by the parties entering into a Financial Agreement (Binding Financial Agreement (BFA) or a prenup), either before, during a marriage or relationship, or after a separation or divorce order is made.

If the Court is asked to make orders for property settlement, the proposed orders must be ‘just and equitable’.

This requirement does not apply if the husband and wife are seeking to formalise property settlement by way of a BFA.

However, both parties must agree to the terms of the BFA and therefore any proposed division of property.

The Court considers a 4-step process to determine whether proposed orders for property settlement are just and equitable.

1. Identify assets & liabilities

First, the husband and wife must identify their assets and liabilities.

If the parties cannot agree on the values of the various assets, it may be necessary to engage an expert to provide a valuation to be relied upon.

Assets can include anything owned by either party, including:

the family home;
investment properties
motor vehicles; and
savings and shares.

The value of the assets is its current market value.

Superannuation is treated separately from all other assets and is commonly equalised between the parties (read about superannuation splitting here).

Inheritance received before property settlement may be treated as a financial resource rather than an asset if received after separation.

2. Husband & wife’s respective contributions

The husband and wife’s contributions to the acquisition, conservation, and improvement of the property pool are assessed in terms of:

Financial contributions;
Non-financial contributions; and
Contributions as homemaker or parent.

The time and the impact of the contribution is important.

No single type of contribution is considered more important than another. For example, contributions by the homemaker or parent are generally given the same weight as financial contributions made by the primary income earner.

The Court can adjust the amount that each party receives as part of the property settlement based on the parties’ respective contributions.

Also, the longer that a relationship lasts, the less weight that the individual contributions are given by the Court.

Often, over a longer relationship, the husband and wife’s respective contributions are more likely to be considered relatively equal.

3. Husband & wife’s future needs

Next, consideration is given to whether there should be a further adjustment because the husband or wife’s ‘future needs’ are greater than the others.

Future needs that the Court considers include:

Age and health;
Property and financial resources;
Income and earning capacity;
Whether a party has primary care of their children;
The responsibilities of a party to support any other person;
Standard of living;
Eligibility for a pension, allowance, or benefit;
Child Support;
If a party is cohabiting with another person, the financial circumstances relating to their cohabitation; and
Any other circumstance which, in the opinion of the Court, ought to be taken into account.

4. Just & equitable

The last step that is considered is whether any proposed adjustment to the parties’ property interests is just and equitable.

This includes an assessment of how the property settlement ought to be carried out and the long-term effects of any proposed orders affecting the parties.

So, what is my Husband/Wife entitled to in a Divorce?

In Australia, a split in favour of the economically weaker party of approximately 60:40 is far more common than a 50:50 split.

Sometimes, the Court will consider that the husband or wife’s contributions and/or future needs warrant a division greater than 60:40, for example a 70:30 division in favour of one party.

In determining the parties’ entitlements based on the above process, the Court does not consider who was at fault for the breakdown of the marriage.

Each case has unique circumstances with the property pool, the husband and wife’s respective contributions, and the parties’ respective future needs.

Those circumstances will largely determine the parties’ likely entitlements for property settlement.

An application for property settlement must be made within 12 months of a final divorce order being made (or 2 years after separating for de facto couples).

In exceptional circumstances, the Court may allow a party to commence proceedings for property settlement outside of this time limit.