The Family Law Act 1975 (Cth) gives the Court the authority to make an order to adjust a person’s current property interests following the breakdown of a relationship. That power is contained in section 79(1) for married couples and section 90SM for de facto couples.

In exercising their authority, the Court can adjust the interest that you currently have in any asset including your superannuation. The same goes for your former partner. 

The Court does not assume that your partner should automatically get half of all the assets when a couple separates. Instead they use the following five step process to decide if and how the couple’s property should be divided:

  1. Determine whether it is just and equitable to make an order regarding the couple’s property;
  2. Identify the property interests of the parties;
  3. Identify the contributions that each party made to the relationship including financial contributions and contributions as homemaker and caregiver;
  4. Identify the future needs of the parties, including a person’s current health and their earning capacity; and
  5. Decide whether the proposed division is just and equitable.

As stated in step 1 above, the Court will always start by asking whether it is just and equitable to make an order for property and will continue to ask that question throughout its deliberation of property proceedings. This may result in the Court deciding that there should not be a division of assets at all.

“Just and equitable” is one of those difficult terms which the High Court acknowledged was incapable of an “exhaustive definition”. However they provided three “fundamental” propositions to determine if a property adjustment is just and equitable:

  1. Identify the existing property interests of the parties;
  2. It should not be assumed that either party has a ‘right’ to an adjustment of the identified property interests;
  3. The court cannot determine that it is just and equitable to make an order solely by considering the parties contributions and needs, it is important to make an independent initial assessment of just and equitable.

Each couple’s relationship is unique and it is the unique circumstances which determine any division of property in family law proceedings.

Please note the answers provided are for your general information only and we ask you to call our office on 02 6331 2911 to obtain detailed legal advice for your individual situation.

Lauren Ryan | Family Law Solicitor