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What Factors will Affect Property Settlement After Divorce?

What are the factors that affect property settlement after divorce if the couple cannot come to an amicable agreement? Note that if a couple cannot come to a settlement outside of court, they will have to file an application for property orders to the Family Court or the Federal Magistrates Court. Once a property order is filed, the court will order the couple to undertake “pre-action” procedures that include dispute resolution sessions. If they still fail to come to terms, the judge will have to make a decision through a court hearing.

The general guidelines for a property settlement after divorce include:

1. If the couple has been married for more than ten years, the conjugal property will be divided equally between the two partners. If they have been married only for a short period, then they will recover what they brought into the union. Property settlements will cover not just the combined net assets of the couple but also financial and non-financial contributions made by both parties to the marriage. In addition, the court may also consider the future needs of both parties in deciding the amount of the property settlement after divorce based on factors such as age and health of the partners, earning capacity and changed financial circumstances such as new parenting responsibilities.
2. The judge may also consider marital conduct when determining the amount of the property settlement after divorce although the court is not formally required to consider this as a relevant factor. One instance where marital conduct may be a factor in determining a settlement is if misconduct, such as gambling or spending on a drug habit, on the part of one of the spouses has resulted in financial losses to the conjugal assets. The judge may also consider domestic violence as having a direct financial effect on one of the spouses and adjust the settlement accordingly, i.e. if abuse has cost a spouse a job or caused him or her to move to a lower-paying position.
3. The division of superannuation will be dealt with separately from property orders. Before the judge can make a decision on the division of superannuation, the couple will have to provide a valuation. Note that all superannuation will be taken into account when deciding on a property settlement after divorce and they will not be automatically be subject to an equal split as the court will make the determination as to what is a “just and equitable” division.