What is my Wife Entitled to in a Divorce in Australia?

Asset and property settlements are often one of the biggest concerns when a marriage breaks down, leaving many people wondering what their spouse may be entitled to following a divorce. Understanding how assets, liabilities and financial resources are assessed under Australian family law can help you better understand your rights and obligations. In this guide, the team at O’Sullivan Davies explains how property settlements are determined and the factors that may influence each party’s entitlements.

Divorce and Property Settlements Are Separate Processes

Firstly, it is important to understand that divorce and property settlements are two separate processes. In Australia, a divorce order simply means that you are not married anymore. It is not linked to property matters, except that you must finalise your property settlement within 12 months of an Australian divorce order being made final.

Secondly, entitlements 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

The Court applies the same 5 Step process in all property settlement matters. The steps are:

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 are concerned about what you or your spouse may be entitled to following a divorce, the team at O’Sullivan Davies can help. Contact our experienced divorce lawyers today for practical advice and support tailored to your circumstances.