Property Settlements & Spousal Maintenance

Property Settlements

When a divorce is granted or a de facto relationship has come to an end, it is often the case that property that was once jointly owned (or is deemed by a court to be so) must be divided between the parties, and this includes what was previously joint income being redirected in the form of spousal maintenance.

The processes involved with distributing assets to people who were once in a legally binding relationship (marriage or de facto) are many and varied, and include:
  • selling real property (a house or land or both) to a third party to earn cash to be distributed to each ex-partner
  • selling motor vehicles (boats, cars, jet skis)
  • dealing with superannuation entitlements
  • assigning ownership of particular assets to only one of the ex-partners
Liabilities of the relationship must also be dealt with, and this comes with its own processes and complications.

The manner in which assets and liabilities are divided between parties is not simply a matter of agreement between the parties and their lawyers, but rather all parties will be guided by legal requirements and principles. For this reason, an intimate knowledge of both the legal basis on which property settlement decisions are made and the conventions associated with the negotiations and any court action is a desirable asset to bring to the table.

If the relationship that has broken down was a marriage, spousal maintenance may be available - this is where one ex-spouse is required to pay money to the other in order to ensure his or her quality of life is protected. The court must have regard to the following considerations (amongst others) when determining whether spousal maintenance is payable and if so, how much and on what basis:
  • the age and state of health of each of the parties
  • the income and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
  • whether either who has not attained the age of 18 years
  • commitments of each of the parties that are necessary to enable the to support
  • the responsibilities of either to support any other person
  • where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
  • the extent to which the party whose maintenance is under consideration has contributed to the income
  • the need to protect a party's role as a parent
  • if either is cohabiting with another person: the financial circumstances relating to the cohabitation
  • the terms of any financial agreement that is binding on the parties to the marriage
  • the terms of any Part VIIIAB financial agreement that is binding on a marriage
As a separate issue, child support may also be sought.

If you are considering a divorce or ending a de facto relationship, or if your marriage or relationship has already ended, contact us to find out where you and your partner/ ex-partner stand.

This website contains general information only. This website does not contain any legal advice. If you require legal advice, contact an Australian Legal Practitioner.