Who is entitled to what?

Often I have clients say to me, “I got told that if you’ve been together more than 2 years then the other party automatically gets half”.  Determining who gets what after separation is not a mathematical exercise and there are many factors we must consider when providing advice to clients about what their entitlement may be and we are guided by the factors set out in the Family Law Act as well as the many decisions made by the Courts which provide us with assistance as to what the important considerations are.

The first thing of note though is a Court will not make an order unless it is satisfied that, in all of the circumstances, it is just and equitable to make the order.

When providing advice to clients, we must consider our client’s property entitlement as the Court does which includes the following steps:

1.         Identify and value the property, liabilities and financial resources of the parties.

2.         Assess their financial and non-financial and welfare contributions.

3.         Assess any future needs factors such as disparity of income, income earning capacity and having care of the children.

4.         Consider the effect of those findings and specify what order should be made for a “just and equitable” outcome.

When deciding what orders should be made, some of the factors we take into account include:

1.         The financial contribution made directly or indirectly by or on behalf of a party or child of the marriage to the acquisition, conservation or improvement of any of the property of either party;

2.         Any non-financial contribution;

3.         Any contribution by a party to the welfare of the family in the capacity of homemaker, parent or otherwise;

4.         The age and state of health of each party;

5.         The income, property and financial resources of each party and their capacity to have gainful employment; and

6.         Whether either party has care or control of a child of the marriage.

The above list is not exhaustive and there are many other factors that must be considered.  We therefore strongly recommend that parties obtain legal advice to determine their entitlement based on their individual circumstances.