The answer is, sometimes. The Family Courts, in hearing an application for a property settlement by parties to a marriage or a de facto relationship, start from a 50/50 split of those assets. Now, let’s look at some situations where the Courts will make an adjustment, up or down from 50/50.
When there are one or more children under 18
In a fairly typical example, Mum and Dad have two children of their relationship, aged 11 and 8. Since the parties separated, the children have lived primarily with Mum and spent alternate weekends and half the school holidays with Dad. The parents have agreed that situation will continue indefinitely. In that scenario, because Mum has to house, feed and clothe three people, and Dad only one, the Courts usually make an adjustment in Mum’s favour of around 10%, so she would get 60% of the property and 40% to Dad. If the children are very young – birth to school age, the adjustment is usually greater.
Where the primary carer of the children is not working, or there is a big difference in the income earning capacities of the parties
The Courts will often make an adjustment in favour of the party who is not working or has a significantly lower income than the other. Typically, this might be in the order of 5% to 10% - more if there are children, especially young ones.
The Courts start by assuming that the parties made about equal contributions to their relationship, even if one party was mainly involved in child raising and homemaking, and the other went out and worked. It’s unusual for there to be an adjustment for contributions in that case. And the High Court has said that an entrepreneur who builds up a business over the course of the relationship, even if it’s worth millions, does not get an adjustment in their favour in a property settlement, providing the other party was contributing to the relationship, for example by caring for children and homemaking.
If one party gets an inheritance during the relationship, that may result in an adjustment in their favour. It depends on when the inheritance was received, how much it was and what it was used for. $50,000 received 10 years ago, that was used for joint purposes, like an overseas holiday, to buy a car, for the children’s education, would result in little, if any, adjustment for the party getting the inheritance. If the $50,000 came 2 years before the couple separated, and the person receiving it put it into a separate bank account and it wasn’t used, then there would be little, if any, adjustment to the other party.
The Courts have often been asked, “What happens if I win Tattslotto, (a) while we are together and (b) after we separate, but before there’s a property settlement?” The answers are (a) it’s regarded as joint property, to be divided up, either 50/50, or as discussed above, irrespective of who bought the ticket and (b) if the ticket was bought after the parties separated, it’s usually treated as the property of the party who bought the ticket, although that can get complicated if it was purchased using money from a joint account.
The above examples are not legal advice. Every Family Law property case is different. You should seek advice before starting any property negotiations with your partner. The Family Law team at Tonkin Legal Group are here to help.
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