Matrimonial Property and how the Courts Divide It

Matrimonial Property and how the Courts Divide It

If your marriage has come to an end and you have been unable to agree on how to divideyour matrimonial property between yourselves after divorce, you may be wondering what methodology an Australian court may use to divide the property for you.

It is useful to know in advance the framework that a judge works within so that you can plan for the future more effectively. Furthermore, such understanding will allow you to communicate more easily with your lawyer and will reduce the likelihood of fits of rage when your lawyer tells you something like "your ex is going to get two thirds of everything and you're going to have to pay child support too".

Although still incredibly frustrating, understanding the rationale behind legal decisions by judges can go some way towards easing the pain (and allow you to fight back or launch pre-emptive strikes too, of course).

In Australia, the Family Law Act 1974 (Cth) sets out four broad areas for the court's consideration when it seeks to divide the parties' matrimonial property:

Matrimonial Property Considerations

1.The identification of what exactly the parties own and what financial resources are under the control of the parties. This fact finding mission includes valuing assets, with the most common task being to value the family home (since it may need to be sold or refinanced to distribute its value between the parties as per a court order).

2.How have the parties contributed to the property identified above? Was one spouse responsible for paying 100% of the mortgage whilst the other spouse was the primary guardian of the children?

It may surprise some, but caring for children and the welfare of the family is a valuable contribution itself and will offset the fact that the other spouse has paid for the mortgage in its entirety the court will balance all factors both monetary and intangible to arrive at what it sees as a fair dollar value attributed to each of the spouses.

3.What are the parties' future financial positions? Is the ex-wife a CEO of an investment bank whilst the ex-husband is a primary school groundsman? Future earning capacity also includes the question of child support and how this will impact on the parties' financial positions.

4.Finally, the court must ensure that any alteration of the parties' assets is just and equitable'. This is just like in the movie The Castle where Darryl's house couldn't be seized except if it was on just terms'. This overriding consideration of justice aims to ensure the spouses are treated equally and one isn't ripped off by the court.

Naturally, despite the court's best efforts to give effect to the necessity for property division to be just and equitable', one party will indubitably feel duped.

There are support groups for both men and women who feel mistreated by the Australian family law system and if this is you, simply type in keywords like "divorce support group" and your local area into Google and see what you can find.

By Lauren Nolan on behalf of Love Law - Where Family Matters

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