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How the Family Court Decides Who Gets What in a Separation or Divorce

How the Family Court Decides Who Gets What in a Separation or Divorce

How the Family Court Decides Who Gets What in a Separation or Divorce

When two people decide to separate one of the first things that needs to be sorted out is property.

While under Australian law couples can not actually get formally divorced until one full year after they separate, they can agree on how to divide their assets – or go to the Family Court seeking orders – more or less, straight away.

The general formula for how this is done is quite simple.


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First lawyers will add up all of the assets the former couple owns – for example: the house, cars, any property investments, business interests, shares and any superannuation in each of their names.

The total value of the former couple’s debts are then added together for example: mortgages, car-loans and any business loans and the total value of these debts is then subtracted from the value of the property above.

This figure is then divided by two and this gives us the starting point – a 50/50 division of assets.

Once this step is completed adjusting factors need to be taken into account.

Adjusting factors shift the amount each side of the broken-down relationship will get in the final property settlement.

The adjusting factors the court can take into account include:


  1. The age and state of health of each of the people involved.
  2. How much each of the people presently earns.
  3. Any financial resources each person has.
  4. Each person’s physical and mental capacity to undertake gainful employment.
  5. Whether either of the people has care or control of a child from the relationship, who is less than 18 years old.
  6. Any commitments either of the people has that are necessary for them to support themselves, or a child they have a duty to maintain.
  7. The responsibilities of either party to support any other person.
  8. Whether each person is eligible for a pension or a payment under a government scheme.
  9. Whether each person will be able to maintain a standard of living that is reasonable.
  10. Whether or not one of the people is likely to use some of the money to undertake a course of education or establish themselves in business.
  11. The impact any court-order could have on one of the people’s ability to repay debts to a creditor.
  12. The extent to which each of the people has earned or otherwise contributed money to the collective finances of the former couple.
  13. The extent to which the marriage has impacted either of the people’s ability to work and earn an income – for example if one stayed home to look after a child.
  14. Any child support which needs to be paid.
  15. Any benefit either of the people may gain from a discretionary trust or by way of an inheritance.


There is case law which interprets the legislation on this topic so it is very important to obtain legal advice on how the adjusting factors may apply in your particular situation.

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