As a family law specialist, a couple of myths persistently crop up when I speak to people going through a separation and dealing with joint property. Common ones include:
“Doesn’t the woman always get the house?”
and
“Women automatically get 60 per cent, don’t they?”
The traditional model of a “working husband, stay-at-home wife and mother” probably gave rise to myths such as these (and up until the early 2000s, it was common for orders to be made for children of separated parents to live with the mother and only see their father every second weekend).
Factors such as the mother’s absence from the workforce throughout the marriage, her majority care of the children after the end of the relationship and difficulty in going back to work would often be the basis for more than 50 per cent of the assets going to the wife. In many of those cases, the husband would be in a position to continue working during the week without the care of the children and to quickly re-establish himself.
These days, relationships and family arrangements are far more diverse. It is common now to find both parties working either full- or part-time, and both contributing to childcare and housework.
So, in a nutshell – the answer is no, the wife doesn’t “automatically get the house”. Every situation is unique and any division of property is decided based on the individual circumstances of the parties involved and their relationship.
How does the Court decide who gets what in a divorce?
When deciding how to divide (or in the language of the Court to “adjust”) the property, the Court considers all relevant circumstances. If this is your situation, here is what you can expect to be taken into consideration when going through the Family Court:
1. The Court might choose not to make any adjustment at all.
In some circumstances, the assets and liabilities which each party already has in their own name is a fair division. In that case, the Court will not interfere. However, if this is not the case, the Court moves on to consider item 2…
2. The Court will consider the contributions made by each party to the property pool.
‘Contribution’ is the word used by the Court to describe the financial and non-financial input of each party to the assets they each have. For example, financial contributions may include any assets each party had at the beginning of the relationship, each party’s income earned during the relationship, inheritances received by one or other person, or any other money received by either party during the relationship.
Non-financial contributions might include taking care of the children of the relationship, doing the housework, maintaining a home or investment property or contributing labour to renovations. This is not a strictly mathematical calculation and matters such as the length of time of the relationship will also be relevant.
3. The Court will look at each party’s future needs.
This involves considerations such as:
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Which parent is to have the majority care of the children and will that care make it difficult for them to work?
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Does one party have the capacity to earn a higher income than the other?
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Does one party have health issues which restrict or prevent them from working?
4. The Court makes its decision
After taking into account the above, the Court then makes an Order which is “just and equitable in all of the circumstances” – essentially, one that will best allow each party to support themselves and their children, taking into account the respective contributions of each party and their future needs.
The division of property in Family Law cases is a highly specialised area of Law. It is also a very difficult time emotionally for people contemplating the end of their relationship, the division of their assets and also possibly the arrangements to be made for their children.
It’s important you find a lawyer who has specific expertise in this area to obtain the best outcome for you and your family with minimal stress and expense.
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This information and information published on our website and social media sites is general in nature and for information and entertainment purposes only. This information does not constitute legal advice and should not be relied upon as such. If you require legal advice which takes into account your personal circumstances, please contact us for an appointment.