A common question our Perth family lawyers get is ‘what is my spouse entitled to in a divorce?’.
Divorce can be a challenging and emotional process, particularly when it comes to understanding what each spouse is entitled to. At Hickman Family Lawyers, our divorce lawyers know that navigating this complex area can feel overwhelming.
Let’s break down the key aspects of property division and financial matters in Australian divorces to help you better understand your rights and obligations, as well as what your spouse may be entitled to in a divorce.
What’s the Difference Between Divorce and Financial Settlement?
It’s important to note that in Australia, a divorce simply ends the legal marriage. It doesn’t resolve any of your financial matters or divide your property—this is done through a separate legal process known as a financial settlement.
You can legally apply for a divorce once you have been formally separated for at least 12 months, but you can reach a financial settlement before your divorce is granted.
Resolving financial matters should not be delayed, as strict time limits apply. If you do not settle your financial matters before you finalise your divorce, it’s important to note that you have 12 months from the date of your divorce to initiate financial proceedings in court (or two years if you were in a de facto relationship).
What Are Counted as Assets in a Divorce?
When determining how property is divided between a separating couple in a divorce, the Family Court usually considers all joint and individual assets and liabilities of both parties. This includes, but is not limited to:
– Properties (principal home and investments)
– Bank accounts
– Vehicles
– Superannuation
– Business interests
– Personal belongings of significant value (e.g., jewellery, artwork)
– Debts, such as mortgages, personal loans, and credit card balances
– Investments
It is vital to disclose all assets and liabilities during the financial settlement process. Failing to do so can result in penalties or an unfavourable outcome.
What Is My Spouse Entitled to in a Divorce?
When it comes to working out what your spouse is entitled to in a divorce, there is no set formula for splitting assets in divorce in Australia. Instead, the Family Law Act 1975 requires the court to consider several factors to determine what is just and equitable, including:
– The financial and non-financial contributions made by each party (e.g., income, homemaking, child-rearing)
– The current and future needs of each party, including age, health, earning capacity, and care of children
– The length of the relationship and its impact on each party’s financial situation
Every case is unique, and outcomes can vary significantly depending on individual circumstances.
Is Everything Just Split 50/50 in a Divorce in Australia?
No, property division in Australia is not automatically split 50/50. While equal division may occur in some cases, it is certainly not the default approach. The court will examine the contributions and needs of both parties to decide on an appropriate division.
For instance, if one spouse has been the primary carer for children or has lower earning capacity, they may receive a larger share of the assets.
What About Future Income and Assets?
The court may consider future income and earning capacity when dividing assets. For example, if one spouse has sacrificed career opportunities to care for children or support the other spouse’s career, this may be taken into account.
Additionally, assets acquired after separation can sometimes be included, particularly if they are derived from joint efforts during the relationship.
What Happens to Our Superannuation?
Superannuation is treated as property in a divorce and can be divided between spouses. This is known as a superannuation split.
However, superannuation remains subject to its own preservation rules, meaning it cannot be accessed until retirement or other specific conditions are met. The value of superannuation is assessed, and adjustments can be made to ensure a fair division.
What’s the Difference Between Child Support and Spousal Maintenance?
Child support is designed to ensure that children are financially supported after a separation or divorce. It is calculated based on factors such as each parent’s income and the amount of time the children spend with each parent.
Spousal maintenance, on the other hand, is financial support paid by one spouse to the other if they cannot adequately support themselves. The court considers factors such as the recipient’s financial needs and the payer’s capacity to provide support.
Divorce and financial settlements can be complex, with no one-size-fits-all approach. Understanding your rights and obligations is crucial to achieving a fair outcome. At Hickman Family Lawyers, we are here to help you navigate this process with compassion and expertise.
If you are considering separation or divorce, contact Hickman Family Lawyers today for a free 15-minute information call. Our experienced team of Perth divorce lawyers, led by Ella Hickman, specialises in family law and can provide the guidance you need to move forward with confidence.
