Is Everything Split 50/50 in a Divorce in Australia?

Asset and property division is one of the most common concerns for people going through a divorce, with many wondering whether assets are automatically divided equally between spouses. Understanding how the Family Court assesses contributions, future needs and other relevant factors can help you better understand how asset and property settlements are determined. In this guide, the team at O’Sullivan Davies explains how assets are divided in Australia and why a 50/50 split is not always the outcome.

Divorce and Property Settlements Are Separate Processes

It is important to distinguish between the divorce process and the division of property. A divorce order formally ends the marriage, but it does not determine how assets and liabilities will be divided between the parties. However, once a divorce order becomes final, there is generally a 12-month time limit to commence property settlement proceedings.

Is a 50/50 Split Automatic in Australia?

There is no automatic rule that parties must split all assets 50/50. Entitlements may vary significantly depending on what you have each contributed to the property pool, and whether there are any factors that apply in your case that warrant either party receiving more than what they contributed.

The Five-Step Property Settlement Process

Step 1: Is it appropriate that property settlement orders be made? For example, if there are no joint assets/liabilities and both parties hold property in their names, the Court may say that no further orders are required.

Step 2: What are assets, liabilities, and financial resources held by the parties? This consolidated balance sheet will include all assets held in the parties’ names, or entities controlled by them, or held by a third party on their behalf.

Step 3: What financial, non-financial, and parenting and homemaker contributions have the parties made at the commencement of the relationship (if relevant), during the relationship, and post-separation? Contributions are generally considered on a very holistic basis, and not attributed a dollar value. However, where a relationship is short, the Court will look more closely at the precise financial contributions made by each party.

Step 4: Are there any factors that warrant either party receiving more of the asset pool, over and above what they have contributed? For example, if one party earns much less, or has primary care of young children, they will likely receive a further adjustment (usually a percentage) in their favour.

Step 5: Is the proposed division of the assets just and equitable?

Property settlement entitlements are separate again from an entitlement to spousal maintenance, which is also different from child support. A Court may make an order for spousal maintenance if one party requires financial support and the other party has the means to pay it.

Speak With an Experienced Divorce Lawyer

If you have questions about how assets may be divided following a divorce or need advice about a property settlement, the team at O’Sullivan Davies can help. Contact our experienced divorce lawyers today for practical advice and support tailored to your circumstances.