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I’m separated, what are my property rights?

Asset pool

The first step in any property settlement is to identify and value the asset pool. The pool includes all assets, liabilities and resources in your name, your partner’s name or joint names. Superannuation is included. It also includes the assets held by a company, trust or other entity or structure which is controlled by either party. Assets and liabilities are valued for family law purposes as at the date of an agreement or Court hearing, unless otherwise agreed.

The facts relevant to determining a fair division of the asset pool fall into three categories.

Contributions

In the first category are the contributions made by each party to the asset pool whether financial or non-financial and whether directly or indirectly. For example, the Court will consider:

  • the net assets of both partners at the start of the relationship
  • the income of both parties during the relationship and how it was used
  • financial assistance received by either party by way of an inheritance, windfall or otherwise,
  • time and effort spent maintaining or renovating property; and
  • contributions as home maker and parent.

Future needs etc

The second category of factors generally relate to the future needs of each party. Lawyers often refer to these factors as the “section 75(2) factors”, referring to the relevant section of the Family Law Act. These include:

  • the arrangements for care of children and child support arrangements
  • the income of each party and their capacity for employment
  • the age and state of health of both parties
  • the size of the asset pool and nature of the assets.

Fair and equitable

The third and final category is a general requirement that division of property must be fair and equitable looking at all the circumstances of the case.

Know where you stand

Although it’s a fair result in some situations, there is no presumption that the asset pool should be divided equally. Family laws require that each case be decided on its own merits. Book a family law consultation for legal advice and to discuss your requirements.

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