By Jennifer Hetherington:
Given Australia’s growing divorce rates, there is an alarming degree of public ignorance and misinformation about the property and asset split entitlements for separating couples. Australian Bureau of Statistics figures for the 2012 year show 49,917 divorces were granted for that year – an increase of almost a thousand on the 2011 numbers. Despite the numbers there seems to be quite a lot of ignorance to who’s entitled to what from a split. The issue was highlighted recently with media reports of a Family Court ruling to award the ex-wife of a successful Queensland businessman a $22 million divorce settlement. Sections of the media reported this with almost some surprise. How could a stay at home parent and home maker be entitled to so much? The answer was simple. She was awarded what Australian family law provides for and the judge correctly ruled the man was able to grow his business fortune to $44 million because his wife’s dedication to the relationship and family through the life of their marriage significantly contributed to her husband’s ability to focus on his work and wealth creation. The law recognises this but it seems many people are ignorant of who’s entitled to what. When relationships sour, the partners inevitably undergo a process to identify and split their assets and this is where things can easily go pear-shaped. I find by the time new clients sit down with me to work through the asset split, they have already been influenced by the Four F’s. That’s Family, Friends, Fools and Facebook which seems to be a social gathering point for disaffected ex-partners. Most of the family law misconceptions we deal with stem from these four environments. People talk to the person sitting next to them at the hairdresser, or standing around the barbecue or in social environments. One of the enduring myths is that the law only applies to married couples and does not apply to de facto couples. In reality the law is the same for everyone, including same sex couples. The law says you can’t get married if you are gay but we will divide your property as if you were. Another myth has it that every divorce agreement has a starting point of a 50/ 50 split with more factored in if there are children. Not so. Sometimes the end result is a 50/ 50 split, sometimes not. Every settlement is a unique thing, determined by individual circumstances and there is no automatic entitlement to a specific percentage of the property, which is why what you may have heard at the hairdressers or from a friend or workmate is merely a reflection of a specific case they may have been involved with. It does not automatically reflect the outcome of your case. A note to New Zealanders here. Australian divorce law is different from New Zealand. Do not assume, because you were married in New Zealand, that the provisions of their matrimonial property laws apply in Australia. They don’t. Facebook has a lot to answer for especially as it’s unregulated which means people can and do post wild guesswork or emotive rants camouflaged as facts. A relationship breakdown can be a very stressful time for both parties so a calm and reasoned approach is essential. Gossip and guesswork have no place in helping partners through their split. As an Accredited Family Law Specialist with more than 15 years’ experience I have seen the court process leave families’ lives in a financial and emotional mess. When a couple separate or divorce they do not and should not need to fight. Nor do they need a court battle as there is an alternative respectful process known as collaborative law which uses non-confrontational mediation processes to give both partners a degree of control, in how their assets are split and above all, how their children will fare. Australia’s family law system works on a four step process beginning with identifying all of the assets and liabilities the couple has, including pre or post relationship assets, superannuation and investments. From this point the process moves to recognising what each partner brought to the relationship and how their contribution can be assessed to share the property. The contribution can be financial or non financial. It can be a complicated formula which is why you need to see a family law specialist rather than downloading someone else’s experiences from Facebook. The courts acknowledge the important role stay at home wives have to supporting the breadwinner, as the recent $22 million property split decision involving the businessman recognised. There are various complicating factors to be worked out in the property split process especially if there are children involved. Again, every case is unique. Once the legal steps to identify property and assets and who contributed what to the relationship the Family Court can decide the numbers each is entitled to. This is where the collaborative law process – the non- court option- comes into play. It requires the ex-partners to work together towards a settlement but means they- not the courts- agree on who will get what. So if your relationship has collapsed what steps should you take to prepare for a fair division of assets and property? I refer clients to my 10 point checklist of do’s and don’ts. A sort of FAQ for those new to the world of relationship splits.