Divorce Australia Who Gets What

A divorce can easily become a very stressful event in your life. For many, it can easily become one of the most stressful times of life. Such deep worry and concern can leave strong negative feelings like fear.

Divorce law varies around the world. So, it is important to get help from someone qualified and knowledgeable with Australia’s legal system. Issues of divorce in Australia, come under the 1975 Family Law Act. Australian law establishes and practices a principle of no-fault divorce. This means that the court does not consider why the marriage ended, only the grounds for the break down of the marriage to show no reasonable likelihood that the two parties will again reunite. Common grounds for divorce include adultery, cruelty, abandonment, mental illness and criminal conviction.

Who gets what in a divorce?

To figure out who gets what, it first requires parties to separate marital property from personal property and marital assets from personal assets. Assets are divided according to legal laws. Anything jointly owned under marital ownership is subject to division. Although lines separating individually owned property from marital property can easily become blurred. Keep in mind that any personal owned property that was brought into the marriage can be considered marital property. Although if no contribution from the other spouse has been made, the court may decide for the house to not be split between the two. In Australia, divorce issues are resolved in the Family Court of Australia. For more personalised advice, speak to the legal team at O’Sullivan Legal about asset protection.

ivided in a divorce

How is property and assets divided in a divorce?

The Family Court of Australia has clearly outlined the division of assets and property. As a general rule of thumb, marital properties are divided in half. Each item will not necessarily be split in half, rather each spouse will get different contents. Assets are always aimed to be distributed equitably. Keep in mind that this does not necessarily dictate that assets will be divided equally. Separate property can be used to determine a fair settlement. Consideration of each individuals’ economic circumstances will also be evaluated.
Distribution can occur in a number of ways. Either parties agree on a fair distribution, you seek to formalise your agreement (pending approval of consent in the family court), or finally, if you cannot reach an agreement, you apply to court for financial orders including the division of property or payment of spouse. When a financial order is made, each party is bound to follow it.

Who is responsible for debt after a divorce?

When dealing with divorce disputes, splitting assets is the primary focus. However, debt can also be an issue too. As previously outlined, equality is always the goal. So, if one spouse gets a higher division of assets, that may also be accompanied with more debt obligations. Assets and debts are both considered during a divorce.

Prenuptial agreement

Surprisingly, many people have never heard of prenuptial agreements. In short, a prenuptial agreement outlines the distribution of assets if a marriage fails. It records all assets and debts the spouses bring into the relationship and how they will be separated. In Australia, these are viewed as legally binding financial agreements. Similar agreements can also be made if individuals choose to live together in de facto relationships. It is true that no one goes into a marriage expecting it to fail but going without one is failing to plan.

For a prenuptial agreement to be legally binding, it must be in writing and must comply with legal guidelines outlined in the 1975 Family Law Act. Each person must have also received independent legal advice before signing the agreement and for it to be valid in Australia, any legal advice must have been provided by someone certified under Australian jurisdiction. Signing the prenup needs to be voluntary and free from coercion or any other influence. The prenup must completely disclose each person’s financial standing. Failure to do so results in rigorous penalties.
The benefits of having such an existing agreement are wide reaching. They help to facilitate a swift and smooth separation by preventing contentious disagreements. Any bitterness or quarrelsome arguments are minimised. Because of this, separation costs are also minimal. Studies have also shown prenups to strengthen existing relationships to reduce the likelihood of divorce. Specialists indicate that this results from the clear understanding and important future discussions that eventuate from the creation of such an arrangement. Clarity is encouraged with confusion minimised to increase the chance of a successful and peaceful marriage.

Consult a professional

Whenever you deal with a divorce, it is important to keep a level head and avoid letting your emotions dictate your actions. By actively consulting a family lawyer during the process, you can avoid making common mistakes and steer clear of anything you may later regret. Consult with the Sydney family court lawyers at O’Sullivan Legal today to see how they can help you.


Let’s chat:

Please call our Case Manager on 02 8079 5200 or contact us using the below form:

[contact-form-7 id=”2016″ title=”Contact-Section”]

Copyright © 2013 – 2023 Family Law Legal – O’Sullivan Legal. | Sitemap