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What is my wife entitled to in a divorce?

2 min read

24 Jul 2023

Family Law FAQs: What is my wife entitled to post-separation in Australia?

When couples are separating or divorcing, financial and parenting questions can cause a lot of frustration. The answer to what your wife is entitled to during a divorce will depend on a variety of factors. These factors will ultimately impact the division of assets, child custody arrangements and spousal maintenance. This is a general guide on the confusing question of what your wife is entitled to.

Property division post-separation

In Australia, the Family Law Act 1975 legislates divorce and property settlements. The division of assets and liabilities, such as property, real estate, investments, and even superannuation, must be divided in a manner that the Federal Circuit and Family Court of Australia will consider “just and equitable”. This does not necessarily mean that it is divided equally. “Equitable” means “fair”, which doesn’t always (and often won’t) translate to a 50/50 split.

The Court considers several factors when deciding on how the assets in a divorce are divided. These are the top considerations:

What does the asset pool consist of? The Court, and your lawyers, will need to determine what your asset position is including any real estate, investments, vehicles, companies and savings as well as any associated debts, in order to provide you with an accurate view of your entitlements. The Court will consider the what the asset pool consists of when you are finalising your matter in Court, not when you separated, so it is important to finalise your matters as soon as possible.

Initial Contributions: This includes what both yourself and your spouse brought with you at the commencement of the relationship, such as, owning your own home or having cash savings.

Contributions during the relationship: This includes financial and non-financial contributions to the relationship. Financial contributions include wages, as well as any windfalls including winning the lottery, receiving a cash gift or receiving an inheritance. Non-financial contributions include caring for children and household work.

The future needs of each party: Age, health, financial resources, care of children and ability to earn income are common factors considered by the Court.

Just and equitable requirement: The division of assets (and debts) must be just and equitable to both parties. The court considers whether the division of assets is practicable and in the best interests of all parties, for example, the Court may determine that an outcome more favourable to one party than the other is just and equitable, if it means that both parties able to retain a home to live in, as opposed to a home being sold and one party being homeless.

How long you have been married also can change the split between you and wife. The longer the marriage, the less significance is placed on financial contributions at the start of the relationship.

If you signed a binding financial agreement (BFA or pre-nup) your property pool will typically be divided as per the agreement. If there is a dispute about the validity of the BFA then a court has the power to make orders that set aside your BFA, depending on the circumstances. For this reason, it is important to have an experienced Family Law expert prepare your BFA.

The process of determining the property pool and the division of assets is explained in further detail here.

Child Custody and Support

The best interests of the child(ren) are always paramount in divorce and separation proceedings. Each parent has parental responsibility for their children until they turn 18,  unless the parents agree otherwise, or it is ordered by the Court.

The Court can make an order that both parents have joint decision making responsibility for their children, that one parent have sole responsibility or that responsibility for certain decisions be allocated between the parents. As of 6 May 2024, there is no longer a presumption that children should spend equal time with each parent, if the parents have joint parental responsibility.

Child support payments are usually made directly through the Child Support Agency (CSA). It is typically calculated based on both parents’ income, the number of children, and the number of nights each parent spends with the children.

You can, however, come to a private agreement that deals with child support matters, called a Binding Child Support Agreement.

These are some of the most common considerations when deciding on child support payments:

  • Food & clothing;
  • Housing and accommodation;
  • Medical expenses;
  • Child-care or school fees;
  • Travel expenses; and
  • Costs of extracurricular activities.

Many of these are ongoing and future costs. How these costs are shared in the future can be considered as part of your family law settlement and are relevant to the future needs of each party.

If you are the sole income earner family, you may be paying the majority of the expenses initially and eventually the division will change overtime as the children grow and there needs change.

Spousal Maintenance

There might be cases where your wife may be entitled to spousal maintenance in following separation. Spousal maintenance is financial support and is typically granted when one party cannot adequately support themselves and the other party has the capacity to pay.

The court considers factors such as age, health, ability to work, what a suitable, or “known” standard of living is, and whether the marriage affected the earning capacity of the party seeking support. They also consider how long it may take the spouse to start earning an income to support themselves as well.

Get clarity on your position if you are considering separation

What your wife is entitled to post-separation in Australia depends on various factors such as the length of the marriage, the contributions from both parties, future needs, and the best interests of any children involved. It’s a complex process, and each case is unique. A family lawyer is best equipped to firstly advise you of the process and give you some guidance as to the division of assets between you and your wife.

Meeting with a family lawyer can help to provide you with guidance on what a “just and equitable” settlement would be for you. Also, it will help provide guidance on how long it will take reach a settlement and ensure that you understand your entitlements. Getting advice early can help to settle the matter quickly without having to go to court. It gives you clarity on your position and the possible expected outcomes.

Where you have a complex asset pool that includes family trusts and businesses it can take some time to determine the value of your assets and liabilities. Experienced family lawyers in complex property settlements are best to guide you through the process.

How we can help

At PCL Lawyers our team of family lawyers can assist you in all the points above and more. We have a great depth of experience in assisting clients in resolving their family law disputes and take care in the how we advocate for our clients. We are determined and capable of in assisting you whether your matter is amicable and straightforward or if the matter involves complex asset pool and international child custody issues.

Our family lawyers can provide you with a considered opinion and provide you with reliable information about your options and expected outcome. If you are seeking clarity and professional legal advice contact one of our team today.

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