Family Law FAQs: What is my wife entitled to post-separation in Australia?

When couples are separating or divorcing, financial and parenting questions can cause a lot of frustration. The answer to what your wife is entitled to during a divorce will depend on a variety of factors. These factors will ultimately impact the division of assets, child custody arrangements and special maintenance. This is a general guide on the confusing question of what your wife is entitled to.

Property division post-separation

In Australia, the Family Law Act 1975 legislations divorce and property settlements. The division of assets and liabilities, such as property, real estate, investments, and even superannuation, must be divided in a manner that the Federal Circuit and Family Court of Australia will consider “just and equitable”. This does not necessarily mean that it is divided equally. “Equitable” means “fair”, which doesn’t always (and often won’t) translate to a 50/50 split.

The Court considers several factors when deciding on how the assets in a divorce are divided. These are the top considerations:

What does the asset pool consist of? The Court, and your lawyers, will need to determine what your asset position is including any real estate, investments, vehicles, companies and savings as well as any associated debts, in order to provide you with an accurate view of your entitlements. The Court will consider what the asset pool consists of when you are finalizing your matter in Court, not when you are separated, so it is important to finalize your matters as soon as possible.

Initial Contributions: This includes what both yourself and your spouse brought with you at the commencement of the relationship, such as, owning your own home or having cash savings.

Contributions during the relationship: This includes financial and non-financial contributions to the relationship. Financial contributions include wages, as well as any windfalls including winning the lottery, receiving a cash gift or receiving an inheritance. Non-financial contributions include caring for children and household work.

The future needs of each party: Age, health, financial resources, care of children and ability to earn income are common factors considered by the Court.

Just and equitable requirements: The division of assets (and debts) must be just and equitable to both parties. The court considers whether the division of assets is practicable and in the best interests of all parties, for example, the Court may determine that an outcome is more favorable to one party than the other is just and equitable, if it means that both parties are able to retain a home to live in, as opposed to a home being sold and one party being homeless.

How long you have been married can also change the split between you and your wife. The longer the marriage, the less significant is placed on financial contributions at the start of the relationship.

If you signed a binding financial agreement (BFAs or pre-nup) your property pool will typically be divided as per the agreement. If there is a dispute about the validity of the BFA then a court has the power to make orders that set aside your BFA, depending on the circumstances. For this reason, it is important to have an experienced Family Law expert to prepare your BFA.

The process of determining the property pool and the division of assets is explained in further detail here.

Child Custody and Support

The best interests of the child(ren) are always paramount in divorce and separation proceedings. Both parents have responsibility for the care and welfare of their children until they turn 18, whether they are married or not. Australian family law has assumed that parents have equal shared parental responsibility, unless parents agree otherwise, or it is ordered by the Court. Equal shared parental responsibility means that both parents are responsible for making long term decisions around the health and wellbeing of the child(ren) and does not always mean that they spend equal amounts of time with the child(ren).

Child support payments are usually made directly through the Child Support Agency (CSA). It is typically calculated based on both parents’ income, the number of children, and the number of nights each parent spends with the children.

You can, however, come to a private agreement that deals with child support matters, called a Binding Child Support Agreement.

These are some of the most common considerations when deciding on child support payments:

• Food & clothing;
• Housing and accommodation;
• medical expenses;
• Child-care or school fees;
• travel expenses; and
• Costs of extracurricular activities.

Many of these are ongoing and future costs. How these costs are shared in the future can be considered as part of your family law settlement and is relevant to the future needs of each party.

If you are the sole income earner family, you may be paying the majority of the expenses initially and eventually the division will change over time as the children grow and there needs change.

Spousal Maintenance

There might be cases where your wife may be entitled to spousal maintenance following separation. Spousal maintenance is financial support and is typically granted when one party cannot adequately support themselves and the other party has the capacity to pay.

The court considers factors such as age, health, ability to work, what is a suitable, or “known” standard of living is, and whether the marriage affected the earning capacity of the party seeking support. They also consider how long it may take the spouse to start earning an income to support themselves as well.

Get clarity on your position if you are considering separation

What your wife is entitled to post-separation in Australia depends on various factors such as the length of the marriage, the contributions from both parties, future needs, and the best interests of any children involved. It’s a complex process, and each case is unique. A family lawyer is best equipped to first advise you on the process and give you some guidance as to the division of assets between you and your wife.

Meetings with a family lawyer can help provide you with guidance on what a “just and equitable” settlement would be for you. Also, it will help provide guidance on how long it will take to reach a settlement and ensure that you understand your entitlements. Getting early advice can help settle matters quickly without having to go to court. It gives you clarity on your position and the possible expected outcomes.

Where you have a complex asset pool that includes family trusts and businesses it can take some time to determine the value of your assets and liabilities. Experienced family lawyers in complex property settlements are the best to guide you through the process.

How we can help

At PCL Lawyers our team of family lawyers can assist you in all the points above and more. We have a great depth of experience in assisting clients in resolving their family law disputes and take care in how we advocate for our clients. We are determined and capable of in assisting you whether your matter is amicable and straightforward or if the matter involves complex asset pools and international child custody issues.

Our family lawyers can provide you with a considered opinion and provide you with reliable information about your options and expected outcome. If you are seeking clarity and professional legal advice contact one of our team today.

About The Author – Jessica Saunders

Jessica is a Lawyer in PCL Lawyers’ Family Law team. She holds a Bachelor of Laws (LLB), a Graduate Diploma of Legal Practice (GDLP) and a Masters of Applied Law specializing in Family Law (M Applied…