The law says that there is a four-step process to determining the appropriate division of assets, liabilities and superannuation when couples separate. And yes, superannuation is on the table!

Step 1 is to identify all of the assets, liabilities and superannuation (“the property pool”). This includes everything in your sole name, your partner’s sole name, anything in joint names and everything held on trust or on behalf of someone else (for example, the children’s bank accounts), and importantly, everything acquired or incurred since separation. ‘Assets’ means savings, houses, land, cars, shares, trusts, businesses and the like. ‘Liabilities’ means all debts—including personal loans, credit card debts, home loan/mortgage, hire purchase lease arrangements and the like. ‘Superannuation’ includes just that, and any superannuation entitlement that may be paid as a pension. Identified next to each item listed in the property pool should be the estimated value or debt as at the current date (not the date of separation). The value of each item of property in the pool at the time of separation may be relevant depending on how long ago separation was.

Step 2 is to identify the contributions made by you and your partner to the property pool, both during the relationship and post separation. The contributions considered are the financial ones, the homemaker/parent ones and the non-financial ones such as repairs, maintenance, renovations and the like. This is a retrospective look at how the property pool in existence came to be. What did you each own/have at the start of the relationship in terms of assets, debts and superannuation? Did either of you receive any lump sum gifts, inheritances, lotto wins, insurance payouts? How were the household chores shared during the relationship and since separation? Who did the repairs, maintenance, improvements or renovations? If there are any children, how was the parenting role shared during the relationship and post separation?
At this stage, an adjustment may be made in one person’s favour over the other having regard to the contributions made. The division of property doesn’t end there though.

Step 3 involves consideration of your and your partner’s future needs. It is a prospective look at what the future might hold for you both. Are there children of the relationship? If so, what are their ages? What are their care arrangements going forward? Are you and your partner employed? If so, what is the income earning ability? If not, what is the capacity of you and your partner to work and earn an income (namely health status, disability)? What are your respective ages? What has been the duration of the relationship? How, if at all, has that affected each person’s ability to work an income?

Step 4 involves considering whether the proposed division (with the adjustments at Step 2 and 3) is fair—is it ‘just and equitable’? Some tweaking may be appropriate here to ensure that the overall outcome is fair.

When you see a lawyer, they will generally provide you with a range about what an outcome of an appropriate division of property might be if you were to ask a Judge to decide. The reason for the range is because the relevant law is largely discretionary—open to interpretation by a Judge. It is an art, not a science.

We can provide you with independent legal advice and give you a range as to what an appropriate might be in the division of your assets, liabilities and superannuation. Get in contact with us today to make an appointment with one of our experienced family lawyers.

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