What is my wife entitled to in a divorce in Australia?/ What is my husband entitled to in a divorce in Australia?
The two variations of the above question are very common for people to ask upon separation.
It is first of all important to clarify though divorce is often used to generally describe all legal components following separation it actually has a specific legal meaning. If you file for a divorce in Australia you are filing to legally end your marriage. Although property settlement (division of assets and liability) and parenting matters (particularly regarding care arrangements for the children) are often described as being part of a divorce they are separate legal processes to filing for a divorce.
The questions above relate to property settlement, and they are very important to consider after separation. Property settlement allows both parties to be able to move forward with financial finality between them. If legally married, you and your spouse each have 12 months to commence your property settlement after divorce otherwise you will require leave of the Court to apply for property settlement. If not legally married and instead were de-facto you have 2 years from the date of separation to commence the property settlement or leave of the Court is required. It is important to note that many people do not apply for divorce immediately after separating. In some cases, this can mean that property settlement proceedings are not commenced until a considerable time after separation. You should also be aware that at the time property settlement is initiated, full disclosure is required, including all assets and liabilities, even those acquired after separation.
The answer to the original question is complex, as it depends entirely on the individual circumstances of the relationship. Property settlements are not automatically 50/50, nor do they follow a fixed percentage. The Court applies a four-step process:
- Assessment of the net asset pool;
- Assessment of the financial and non-financial contributions of both parties;
- Consideration of whether an adjustment is required for future needs; and
- A final assessment to determine whether the overall outcome is just and equitable (fair) in all the circumstances.
When assessing financial contributions, consideration is given to what each party brought into the relationship at its commencement, each person’s employment (including whether it was full-time or part-time), earnings, liabilities, inheritances, and any financial gifts received. Significant lump sum contributions — such as inheritances, insurance payouts, or redundancy payments — are also considered, including how those funds were applied during the relationship.
Non-financial contributions are equally important. These can include renovations undertaken through personal labour, homemaking responsibilities, and contributions to the welfare of the family, including primary care of children.
There is also consideration towards the impact of any family violence had upon a party’s ability to contribute to the relationship.
In relation to future needs, adjustments may be made where one party has a reduced earning capacity or where one parent has a greater ongoing responsibility for the care and upbringing of the children of the relationship.
Since there are all these different factors to take into account it is not possible to simply provide a figure or percentage which would apply to every relationship. It is important to get legal advice regarding your specific circumstances to get an accurate percentage range for a fair division of assets and liabilities.
At Auslex, we understand that separation can feel uncertain, particularly when it comes to financial security. Our experienced family law team can provide clear, practical advice tailored to your situation so you can make informed decisions with confidence.
If you would like to arrange a complimentary 15-minute consultation to discuss your property settlement options, please contact Auslex on 1300 531 137, visit www.auslex.com.au, or email help@your-divorce.com.au. Taking early advice can make a significant difference to protecting your position and planning your next steps.
For more information on Property Settlements, read here https://your-divorce.com.au/securing-a-fair-property-settlement-with-an-uncooperative-partner-proven-strategies-that-work/
