Dispute Resolution
Divorce Property Settlement

I have had parties in family law property settlements obtain anything from 100% of the property pool to zero percentage where the Court has not chosen to exercise its discretion to even decide a case because of the circumstances. Such circumstances where a Court will not even permit an application for property distribution include:

  1. Where there has been unexplained and unreasonable delay by a party commencing proceedings where the application is out of time. Being one (1) year after a divorce or two (2) years after the ending of a defacto relationship and “hardship” can not be established.  Put very simply, hardship is a lost case opportunity where there is enough money to argue about for the court to use its resources. Edmunds v Edmunds
  2. Where the parties had kept separate assts and there was absolutely no intermingling of finances; Stanford v Stanford
  3. Where one of the parties chronically failed to provide disclosure of their assets and finances (some of which were kept overseas) and the Court merely accepted the position of the other party as to what assets and financial resources that non-complying party had Black v Kellner

However, there is a “bread and butter” theme of awards which seem to reflect the basic principles of the four / five step approach to determining what each party will get. Generally, if there are younger children and the children live with the mother and spend time with the father then the mother will achieve a better outcome than the father (all things being equal). In a short marriage/relationship parties are more likely to get closer to “dollar for dollar” award of their financial contributions, particularly if there are no children.

One Australian study, although a bit old, probably is a fair reflection on what is seen. However, there is no automatic assumption as to who will get what in family law divorce property proceedings.

The Australian Institute of Family Studies found that on average the wife will receive 55 per cent of the property and financial resources owned at separation. Of those who participated in that study 42 per cent indicated that the wife received 60 per cent or more of the property and financial resources owned at separation;

Property settlements where there are children who reside with the mother are more likely to favour the mother. The reason is simple – s75(2) of the Family Law Act provides an adjustment for a future need. In a Court which is set up to primarily assist children in separated families it is not surprising that the law and the court will make adjustments and exercise its discretion to favour the parent who has the care of the child/ren.

While it is not always the case as there are many variables and legal principles to apply, the parent (be it mother or father) who has the substantial care of the children (live with orders) will routinely do better in the financial separation of assets.

In summary, based on the very bland and dated study cited above generally, there is a distribution to the husband of 40% to 45% and 55% to 60% to the wife.

It is critical that you obtain comprehensive advice from an experienced Family Lawyer to determine what the range of likely outcomes are that you will receive. This can only be achieved by closely and comprehensively considering your facts against the law and experience in how courts consider those facts.

We provide a no cost initial conference to provide you with a preliminary assessment of your matter and an understanding of the costs, process and likely outcomes of your matter.