Symbolising the breakdown and end of relationship with house involved

Is it difficult to divide assets between parties after separation or divorce?

When relationships break down, there is a need to separate & divide the assets accumulated during the relationship. If you and your former partner cannot agree as to the quantity of the asset split, then it becomes necessary for the Court to make the division.

There are two kinds of financial orders that the Family Court can make:

  • Orders that divide your property and assets (and liabilities)
  • Orders that provide for the care or maintenance of former partners or children (spousal maintenance and binding child support agreements.[add hyperlink to page]

In Western Australia, there is no presumption that property is to be divided equally between the parties. In fact, there is no presumption that assets will be divided between parties at all.

The Family Court will only make an order altering property interests, if it is fair to do so, given the circumstances of the parties. Often this will depend on whether one party has care of children, or if one party cannot adequately support themselves.

The Family Court approaches all property divisions by looking at

  • What are the total assets and liabilities of you and your former partner?
  • What were the total contributions of you and your former partner to the relationship?
  • What are your and your former partner’s current and future needs?
  • Would it be fair and just to split the assets between you and your former partner?

It is important for you to seek proper legal advice, as determining which assets and liabilities are going to be calculated as part of the division, can be tricky and requires expertise.

Assets can take many forms. Usually, the assets of a relationship are the assets that existed at the time of separation. Usually these would include the matrimonial home, savings in bank accounts, motor vehicles, and in some cases, trust accounts. The pool of assets includes any asset in either or both party’s name, or in either party’s control.

The Family Court will take into consideration how much each party contributed to the relationship. Even if one party has contributed significantly more financially to the shared asset pool, other types of direct, non-financial contributions, such as repairing the home or caring for children, will be regarded as valuable contributions to the asset pool. Ultimately, the division of the asset pool will be largely based on the current and future needs of both parties, taking into account their age, health, capacity to work and their level of care of the children.

An inheritance received by one person can affect the alteration of property in a family law dispute. The timing of when the inheritance was received is crucial, as is the length of the relationship, and the size of the inheritance. If the inheritance was received early on in the relationship, and the relationship was long, then the inheritance would have become a less significant contribution over time, in comparison to other contributions by the parties. However, if the inheritance was received late in the relationship, or the relationship was short, then it would be likely that a property adjustment would be made in favor of the party who received the benefit of the inheritance. If the inheritance was sizable, then that fact will also impact how the Court splits the asset pool. A sizable inheritance received by one person would significantly alter the pool of assets, impacting the division of the assets.

Superannuation splitting laws allow superannuation to be divided after a relationship breaks down. Superannuation is treated similarly to property under these laws, when it is actually a form of trust property – and therefore not technically the property of the person in whose name it is in. Married couples in Western Australia are able to ‘split’ their superannuation, meaning a Court can make an order that when a superannuation interest becomes payable (such as if the person retires) then the ex partner will also receive a payment.

De facto couples currently cannot split superannuation in Western Australia, but new laws passed on the 3 December 2020 that will allow splitting. These laws will come into effect after proclamation.

Mossensons has extensive expertise in advising and preparing applications for property divisions. Mossensons can advise you as to how to initiate a property settlement or defend an application made against you, and can advise what the likely division may be, given your unique circumstances.