Marina Khoury

Property settlements after separation. What are they and what do I need to know?

Bob and Claire have been married for 9 years. They have two children together, Henry who is 5 and Emily, who is 8. They purchased a home together when they were first married and have two cars and caravan. They also have two credit cards. One is in joint names and the other credit card is in Bob’s name only. The home at Modbury is encumbered by a mortgage.

Bob works fulltime as an electrician and after the birth of Emily, Claire stayed at home caring for both children. Claire has taken care of the children, maintained the house and has also taken care of the finances throughout the marriage.

Earlier this year, Bob decided to separate from Claire. Bob vacated the Modbury home and left Claire at the home with the two children.

**Please note, this above scenario can also apply to de facto relationships (subject to meeting certain criteria), and same sex relationships.

What happens now?

Claire is confused after her separation as she does not know what to do next and what the separation will mean for her and the children. How does Wills and Estates law govern the property settlement? Claire is also curious to know what share of the property pool she is likely to receive and what factors are taken into account by the Courts when considering a person’s entitlement following separation.

To consider this the following information is generally required:

The asset pool

  • What are the assets of the relationship? This can include (but is not limited to) homes/land, cars, monies in the bank, business, a company/ies, shares etc. Superannuation is also treated as property as well.
  • What are the liabilities? This can include (but is not limited to), a mortgage, credit cards, loans, company debts, etc.
  • Consider whether the assets and liabilities owned jointly, individually or by a third party?

What did the parties contribute to the relationship

  • What contributions were made in the relationship? These contributions include, initial contributions (made at the commencement of a relationship), financial and non-financial contributions (such as income generated by the parties and who maintained the home and cared for the children).

Future considerations taken into account

Factors considered under this step can include (but are not limited to) the following:

  • Are the parties earning abilities similar or is there a disparity in income and earning capacity (this can occur when one party has worked in formal employment throughout the marriage with the other party taking care of the children fulltime)
  • The future care of the children (that is not covered by child support payments)
  • The age and state of health of the parties
  • A standard of living that is reasonable to the parties’ circumstances

Looking at your circumstance and making an assessment

This is where we take all the facts of your case and look at what sort of division of property would be fair and reasonable in the circumstances.