be contributed by the couple or another party. For example, you may have already owned a home at the start of the relationship or received an inheritance whilst paying off the mortgage.
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4) Step Four: What are the differences between you that need to be taken into account? These are what lawyers refer to as the “relevant Section 75(2) factors”. Generally speaking, the most common factors you may need to consider are: ◊ Does each party have the same earning capacity? If one partner has been out of the workforce caring for children for 20 years, and the other is running the family business, then obviously the answer to this question is “no”. An adjustment will need to be made in favour of the non-working partner. ◊ Who will be caring for the children? If one parent is working and the other is at home caring for young children, the restricted earning capacity of the primary caregiver needs to be taken into account. ◊ Are both parties approximately the same age and in good health?
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◊ 5) Step Five: Divide the assets, liabilities and superannuation so that the outcome is fair. As you can probably surmise from the first four steps, not all property settlements are 50:50. Here are some case studies that exemplify this: a) Situation: The mother looked after four pre-schoolers and did not work outside of the home. Her husband was a solicitor with a high earning capacity. Outcome: The mother received 80% of a $300,000 pool of assets. b) Situation: A young couple had been together for five years, had no children and earned approximately the same income. Outcome: The couple divided their asset pool equally. c) Situation: An older couple had both been married before and had adult children by other relationships. Outcome: They divided their assets according to their contributions, which were 70:30. The business which they set up together was split 50:50. Here are some further tips to make the division of your assets fair and equitable: ◊ ◊
Attain legal advice before finalising your property settlement. Document your settlement so that it is final, binding, clear and takes into account all of
the assets, liabilities and super. Remember commercial reality. Don’t fight over things which don’t matter. Be fair and logical when dividing presents that you received as a couple. For example, wedding gifts can be divided according to which side of the family gave them. If you can’t agree upon the division of gifts from shared friends, either toss a coin, go pick for pick, donate to charity or sell the item and split the money. If one side of the family gave you furniture, then the same rules apply, no matter how long ago it was given. If someone was driving a certain car before the separation, then they are entitled to keep this vehicle after separation. This logic applies to other items. However, remember that whoever has the kids most of the time should have a roadworthy car to transport them. When dividing children’s belongings, please bear in mind that the children’s bedrooms should be set up well in both households.
Sometimes, it’s very difficult to split things completely fairly and you may feel a little hard done by. If there is not enough money to go around, do your best and remember that the longer the fight goes on, the less your money is worth and the less there is to go around.
