Are Family Law property settlements fair or am I going to lose it all?

Family Law: 18 September 2023

Author: Dylan Burch - Our People

The amount of first conferences lawyers have where they are told, “I only want a fair property settlement”. Well, what does a fair outcome mean? From the outset, your lawyer is not going to (well really shouldn’t) give you a definitive outcome.

What you will hear us talk about is what the range of a likely outcome will be. Before you ask, no we aren’t being cheeky, there are just so many different elements we need to consider to determine what your entitlements are.

If you keep the kids, you keep the lot?

A lot of people will tell you whoever has the children more after the divorce will end up with the lion’s share of the property. Whilst this is certainly a meaningful consideration, there are many different factors which must be considered including:

1. Was it a long relationship or marriage? A long marriage these days is anything in that 8-to-10-year range. Grandma still disagrees with me that 8 to 10 years could possibly be considered a long marriage.
2. At the start of the relationship did you have any assets of significance? An asset of significance can mean a house, savings, car and/or superannuation, which people can forget about.
3. Did anyone receive an inheritance or any major windfall? For example, this could be gambling winnings or that lucky winning raffle ticket. I had a client who won a very fancy car in a raffle once.
4. What is your respective income earning capacities? It is important to note that capacity rather than current income is certainly a consideration. If someone quits their role of CEO of a major company before a separation, it isn’t a good look.

Future needs of the parties – The courts crystal ball

After finishing with factors during your relationship, we then have to consider your respective “future needs”, and this is certainly not an exhaustive list but can include:

1. The health of the parties. It might be sad to think but a relevant consideration is the life expectancy of the parties.
2. Who has primary care of the children and does this affect their income earning capacity?
3. What child support someone pays to the other parent.
4. Is anyone in receipt of any spousal maintenance payments?
5. What, if any, other financial resources people have available to them. A financial resource can be an interest in an asset which the person may not directly control but have received the benefit of or will receive the benefit of imminently. This can include interests in trusts, estates, or properties.
6. Has a party remarried a billionaire and is going to live a completely different life? Best of luck if you have.
7. The Court can also consider anything which it feels is in the interest of justice. This is open ended and can include numerous different factors.

As you can see, a family law property settlement is a unique beast. However, at Aitken Partners we try to keep things simple and work towards an outcome you want, and you can live with. If you are told you are going to get everything and there is no way you could lose, it might be time for a second opinion. We are more than happy to offer a free case evaluation to discuss your property settlement, give you pragmatic tips about resolving it as quickly as possible but also not to just tell you what you want to hear.

If you want to discuss any of the above, please reach out on (03) 8600 6000.