Legal Comment by Mark Illidge

October 2006

If separating, we recommend that both spouses seek legal advice, at least initially, to ascertain their legal entitlements.  Once a person has obtained legal advice they can commence negotiations with their former spouse on the basis that what they are seeking is within a reasonable range.

The Family Court follows a four-step process when determining what is just and equitable in a matrimonial property settlement:

Step 1 - Determine the Net Value of All Property

• Identify all property (real estate cash investment shares, furniture, motor vehicles, business interests and superannuation) owned jointly and separately by the parties;
  Place a value on each item of property.

Step 2 - Assess the Contributions of Each Party

The Court will consider:

• Financial contributions made directly (eg. employment income) or indirectly (eg. gifted money) towards the acquisition, conservation or improvement of any matrimonial property;
  Non-financial contributions made directly (eg. home maintenance) or indirectly (eg. sacrificing career to care for children) towards the acquisition conservation or improvement of any matrimonial property; and
  Contributions made for the welfare of the family including contributions made in the capacity of homemaker or parent.

Step 3 - Other Circumstances

The Court has a wide discretion based on factors including:

• Age and health of the parties;
  Income property and financial resources of the parties and their physical and mental capacity for appropriate gainful employment;
  Additional sources of income, allowances, benefits or support;
  The need to care for a child of the marriage under 18 years; and
  The duration of the marriage and the extent to which it has affected the earning capacity of either party.

Step 4 - Fair Settlement

• After weighing up the contributions and future needs of each party the Court will make an order that it considers proper and that in all the circumstances is just and equitable.

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