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Family Law: How Does the Family Court Divide Assets in Property Settlement Cases?


The family law battleground is treacherous underfoot for most. Experienced legal advice, focusing on mitigation, can help ease the terrain.

Family law is a complicated issue; the division of assets in a property settlement case is one of the most emotive, and hotly debated, cases that come across our desks.

When it comes to divorce, the division of marital assets is always going to be a highly contentious subject. Items such as vehicles, furniture and even pets are shared in a marriage, but who receives what when it all breaks down?

In Australia, there is no law that guarantees the equal distribution of wealth but Family Courts have steps to ensure a just and equitable decision. These include:

1. All liabilities and assets must be identified. This includes superannuation entitlements, personal assets, trusts and companies.

2. The identification of what contributions each spouse made to the preservation or maintenance of any assets. This can include financial contributions and contributions as a homemaker or parent.

3. Family Court will decide if any adjustments are needed for matters such as differences in incomes, health, age and availability of financial resources.

4. A final assessment will be made at the end of these steps that the proposed assets decision is equitable and just.

It should be noted that even if these steps are followed diligently, further complications may also arise.

Some common questions about asset division

Divorce or the separation of a de facto relationship can be complicated. At the very least it can be confusing and emotionally draining. Most people want to get their divorce finalised as soon as possible. But property settlement disputes can really hold up proceedings. Time and again the same questions are asked regarding the division of assets. Here are just some of the most FAQs.

Will Family Court exclude pre-marital assets, gifts and inheritances?

No.  Any gifts or inheritances brought in pre-marriage aren’t included but may count as “credit” given to the spouse in analysing who had the asset majority in a marriage.

Is domestic violence relevant in property proceedings?

Yes. The actions or conduct of one spouse can make the other contributions significantly more arduous than they ought to have been” which can result in that party receiving a greater asset share.

If you or someone you know has or is currently being subjected to domestic violence it is important you speak to the police immediately. CM Lawyers can offer you legal assistance in domestic violence proceedings including advice, court appearances and the filing of Apprehended Violence Orders.

Take a look at our infographic Breaking the Cycle of Domestic Violence for more information. 

Does the amount of assets in a case matter?

Of course. The size and amount of individual assets are relevant factors in property cases but the process of assessment is not. You can read our extensive post on assets and separation here: "How to Protect Your Assets & Your Family in a Divorce"

Please remember that this guide is only the tip of the settlement iceberg. Each divorce is unique and requires communication between you and your lawyer, and preferably, when applicable, between you and your spouse or their legal team in order to get the best possible outcome. You can