When lawyers or the Court approach how matrimonial property is to be divided, a four step process is implemented.
The first step is to identify the net asset pool available for distribution. All assets (including superannuation) and liabilities are included in this calculation, regardless of whether the assets and liabilities were acquired before or during your relationship and even after your relationship ended. The relevant date for the values of any of your property is the date of settlement, or, if you are in Court, the date of your final hearing/trial.
The next step is to look at the contributions each of you made to the acquisition and maintenance of the net asset pool. 3 types of contributions are relevant – financial, non financial and homemaker contributions. The relative contributions are assessed to determine a contributions-based percentage entitlement to the asset pool.
Financial contributions are contributions of a monetary nature, such as applying income to mortgages, redundancy payouts, compensation payments and the like. Also of relevance are your respective financial positions at the commencement of your relationship. These will have more relevance if the property either of you had at the start formed the springboard for subsequent wealth. Gifts and inheritances you might have received during the relationship are also significant, especially if they were applied to mortgages or for the benefit of the family. Indirect financial contributions are also relevant. They include paying bills, buying groceries, payment for holidays, school fees and general family expenses as these payments usually enabled your spouse/partner to apply their income to mortgages or the acquisition of additional assets to bolster the asset pool as a whole.
It is also possible to make negative financial contributions. Gambling, extra marital affairs (if family money has been spent on that affair), alcohol and drug abuse, negligent business or investment decisions may all constitute negative financial contributions which will have the effect of diminishing that person’s contributions-based percentage entitlement.
Non financial contributions are things you have done which have added value to your assets but which aren’t monetary contributions. These things include project managing renovations, DIY home improvements, prudent investment strategies, managing investment properties and so on.
Homemaker contributions are obviously those contributions made to the home such as cleaning, laundry, shopping, gardening, managing the family finances, cooking and of course those contributions made with regard to the care of any children of the relationship. Homemaker contributions are considered to be of equal importance/value to financial contributions.
The next step in the process is to make an adjustment (if necessary) to the contributions based percentage entitlement, taking into account each party’s future financial needs. Relevant factors include:
- Your respective ages and state of health;
- Which of you has the primary care of young children;
- Any disparity in your respective capacities to earn an income;
- Financial resources which may be available to either or both of you in the future;
- The financial circumstances of any new partner you might be living with;
- The duration of the marriage and impact of the marriage on your earning capacity;
- The standard of living enjoyed by you during your relationship;
- The level of child support being paid.
This is where the specific assets and liabilities are divided pursuant to the percentage entitlement. At this point, there may some further percentage shift, to ensure that the outcome is just and equitable.
Each case is different. While the approach is somewhat formulaic, the outcomes are changeable depending on the particular circumstances of your case.