What property is taken into account when dividing up the assets of a marriage?

All the assets currently owned by the parties are taken into account.  This includes assets that are owned either individually or jointly or owned in partnership with others and includes real property, shares, boats, businesses, trusts, bank accounts, superannuation and so on.

How are the assets divided?

It is a common belief in the community that the assets are divided 50%/50% at the end of a marriage, regardless of the length of the relationship.  This is not correct.

The Family Law Act provides for a four step process when making orders for the division of matrimonial assets.  These steps are:

• Identify and value the net property of the parties;
• Consider the contributions, both financial and non financial toward the acquisition, conservation and improvement of any property and toward the welfare of the family;
• Consider a number of other factors including the age and health of the parties, whether either party has the care of the child of the marriage, the financial resources of the parties and their capacity for employment;
• Consider whether the orders proposed are just and equitable in the circumstances.

There are many precedent cases that provide guidance on how the court deals with these factors, however, each case is determined according to its own particular facts.

Do I have to go to court to divide the assets of my marriage?

No.  An agreement can be reached between you and that agreement can be filed with the court and become Court Orders, which finalises the financial matters between you and your former spouse dealt with in the Orders.

It is wise to get advice from a lawyer before you enter into an agreement so that you can be aware of your entitlements.  It is also wise to have legal assistance in drawing up the agreement to ensure that it is enforceable.

Are there time limits for seeking a division of the assets of a marriage?

An application to the Court must be made within 12 months of the date of your divorce.  After that date you must seek the leave of the Court to file out of time.  This may or may not be granted depending on the circumstances of the delay and the prejudice to each of the parties either in allowing the leave or not.

Do I have to be divorced before we divide up the assets of the marriage?

No.  You can file for property settlement prior to being divorced.

Can I enter into a pre-nuptial agreement?

Yes you can.  There are certain requirements for agreements reached in contemplation of marriage, during marriage or at the end of a marriage, including the need for independent legal advice.