When it comes to divorces in Australia, property settlement is one of the most controversial and hotly contested areas.
When a marital or de-facto relationship breaks down and comes to an end, there are legal considerations that need to be taken care of. One of those considerations is the fate of the solid assets (cars, homes, furniture) and liquid assets (money) you shared as a couple.
As you no doubt already know – this is one of the most contentious areas of separation proceedings next to child custody disputes and is responsible for the lengthy, stressful legal battles you see in popular culture. Disputing ex-spouses often have very different views of what each of them should be entitled to and it is often difficult for people to swallow their pride and award anything to their ex.
This can make property settlements one of the most difficult legal issues that results from divorce. As such, the best family lawyers are practised at helping disputing parties reach a mutually agreeable compromise so as to avoid a less favourable court-imposed ruling.
The myth of the ’50-50’ split
In popular culture (such as movies and television shows dealing with marital separation), you may commonly see stereotypical examples disgruntled ex-husbands who might say something along the lines of “my ex-wife took half of all my money in the divorce”. This has given rise to the idea that most if not all divorces in Australia will have property settlement as a 50-50 split between the ex-spouses.
For divorce in Australia, property settlements have no legal rule saying that there must or should be a 50-50 split. The division of assets is based on the relative need of each party and how much they can be said to have invested in the relationship to begin with.
There is a stereotype of ex-wives being entitled to half of their husbands earnings despite having been out of the workforce for some time themselves. This can lead to bitter resentment between parties as one feels they are being exploited by the other.
The reasoning behind many women getting a larger portion of assets than their ex-husband is because they have normally quit the workforce in order to be the primary caregiver of children in the relationship. This means that, after the divorce, it would be harder for them to re-learn skills, get hired and begin earning an income to support children than it would be for a husband who never stopped working.
So, while assets are not split exactly 50-50 in terms of their value, they are split the fairest possible way. When disputing parties are unable to come to an out-of-court agreement regarding the division of assets, the courts have a series of formulas they use to determine the financial value of things such as time spent raising children.
Out of court settlements
When it comes to handling divorce in Australia, property settlements are most favourably dealt with outside the courtroom via a private negotiation between you and your ex-partner. This does not need to be between you personally but can be performed by your legal representatives (lawyers).
The goal of these negotiations is to come to an agreement both you and your ex-partner can walk away from more or less satisfied with. These kinds of discussions are usually very fruitful and result in agreements that are longer lasting and less likely to be disputed in the future.
This is because, when both parties get a chance to actually speak and see what each other wants, they often discover lots of room for compromise. Most of the time, it’s simply getting both parties to agree to a negotiation that is the hardest part of the process.
There is no good reason not to at least attempt a negotiated settlement and because of the back-log of cases waiting to be heard in court, the law requires to prove that you made a genuine attempt before you can have the matter heard by a judge. This requirement is there because most of the time people find they can reach an agreement where they otherwise may have been too stubborn to start talking to their ex-partner.
When looking at divorce in Australia and property settlements, its clear that the system is more complex than most people anticipate. Hopefully the above information has given you more insight on the subject.
If you need a family lawyer to assist you with property settlement negotiation or litigation – contact us today!