One of the main questions we get as family lawyers in Perth is “what am I entitled to in a divorce?”.
There are a multitude of factors that affect what you may be entitled to when you divorce in Australia.
Here are some guidelines on what factors will affect what you may be entitled to if you are getting a divorce, and how to ensure a fair outcome of your division of assets.
Are Assets Split 50/50 When You Get Divorced?
Although Australian Family Law requires the splitting of assets to be just and equitable, it does not mean that everything is split straight down the middle. It would be great if it was always that simple, wouldn’t it?
Unfortunately, as each marriage and divorce comes with its own set of individual circumstances, there is no one set formula that decides as to who gets what when you divorce.
If a Binding Financial Agreement (BFA) or “pre-nup” is in place, all the terms and conditions as to who gets what, will be there, making life easier for both parties. But if no such agreement exists, things can get quite complicated, with a wide range of factors that need to be considered.
Bearing in mind what is at stake here, seeking professional legal and financial advice is strongly recommended for both parties.
Factors Affecting What You’re Entitled To In A Divorce
There are several factors which can all affect what you’re entitled to in a divorce.
These can include the following:
1. Length Of Time Together
This plays a huge role when dividing assets in a divorce. If it was a relatively short marriage and you entered it with a substantially larger portion of assets than your partner, it can be unlikely that they will be entitled to 50% of the total pool of assets.
Even then, there are still factors to be considered, like whether one spouse contributed to the pool, by carrying out a range of domestic duties, or making any other non-financial contributions.
2. Assets & Debts
These are defined as all assets and debts owned by both parties, regardless of whose names they are registered in. They include all properties (such as the family home), bank accounts, investments, cash on hand, businesses, partnerships or trusts, insurance policies, superannuation, vehicles, personal assets and all debt such as mortgage, loans, credit card or any other personal debt.
3. Financial Contributions
The financial contributions made by each spouse when coming into the relationship and during their time together, will be evaluated. These include but not limited to acquisition or improvements to real estate, income, movable assets, gifts and inheritances and dividend payouts.
4. Parenting, home maker, and non-financial contributions
Any non-financial contributions made by each spouse will also be factored in. These include all domestic duties, such as keeping house, bearing and raising children or putting in a long periods of time renovating a property or other assets and thus increasing their value.
5. Current & Future Needs
Current and future needs will usually also play a vital role when deciding who gets what. One spouse may be experiencing serious health issues, hugely affecting their ability to earn. The health of your children could also affect a parent’s ability to work long hours. A person’s age is another factor that may to be considered.
Am I Entitled To My Ex’s Superannuation When We Divorce?
The quick answer to this question would be maybe, but along with all the above mentioned points, it needs to be considered holistically as part of the overall divorce settlement. It also depends on whether you are married or de facto – in Western Australia, superannuation cannot be split between de facto partners.
Projecting future values of superannuation is indeed a tricky and complex business, not easily done without the proper financial advice.
It must be noted, however, that superannuation will be subject to the terms of each policy, meaning that neither partner may access any payments, until they become due, which is usually on retirement. They too, will be subject to the length of time together and length of the actual marriage.
Making Decisions At Family Mediation
As you have probably gathered by now, the splitting of assets is no simple matter and, although legally permissible, carrying out a DIY divorce, is not recommended as there are so many things that could so easily go wrong.
Another option is for each spouse to appoint their own family lawyers and slug it out in Court, where a Judge or Magistrate will make the final ruling on who gets what. This option is obviously much safer than a DIY divorce, but it can be an extremely costly and lengthy process adding to the stress for the whole family.
The quickest and least costly and stressful method, is to divorce through mediation, where one mediator lays out the legal rights and expectations of each spouse and guides them towards making their own decisions and reaching a fair and amicable settlement, which they can both live with.
It is no wonder that an overwhelming percentage of separating couples in Australia choose to divorce through mediation.
Find out more about our family law mediation services in Perth now.