Monthly Archives: July 2013

Splitting up? Decide for yourselves how your property should be handled.

The wedding papers you sign on your wedding day, are probably the most important and binding legal documents you will sign through out your lives.


Marriage in Australia is defined by the Marriage Act 1961, s5(1):

“Marriage, means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”   The age for marriage is 18 for both genders.


Certain unions are not marriages. A same-sex union solemnised in a foreign country is not recognised as a marriage in Australia


Australian law differs from the law in other countries- there are no automatic property rights for each spouse. Whilst  a spouse usually has the right to share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death, non-financial contributions of the parties are taken into account.


A recent estimate of the earnings that a woman forgoes as the result of taking on the role of homemaker and caring for children amounts to 28 per cent of her lifetime earnings or $200,000 for the birth of one child. In marriages where basic assets

comprise close to the entirety of the couples’ asset wealth, most property is split 50/50.  However where there are more than basic assets, a woman’s non-financial contributions, particularly in terms of child-rearing, means that she may well end up with more than half the property, especially if she has the care of children under 18.


It is possible that husbands and wives can incur debts in eachothers’ names especially if there are family businesses.


The marriage contract is a legal commitment to respect, care and support for each other and any children of your marriage. The contract covers property rights, custody rights and impacts on inheritance rights.  The Family Law Act allows claims even over future income … account is taken of a likelihood of a change in the financial situation of either party in the future by reason of superannuation payments, finishing a degree and so on.


Recent changes to the law allow de-factos in both same sex and opposite sex relationships to claim against eachother in some cases even where the only contributions have been homemaker/parent contributions.


If these laws aren’t to your liking, it’s time to think about a financial agreement under the Family Law Act, which in most cases lets you decide for yourselves how your property should be handled.


If there is a financial agreement, the role of the court in any separation process is simple and administrative: It  declares the ending of the relationship, allocates property according to the financial agreement, and takes into account the needs of children when making an allocation of custody and access rights.  Then people can get on with their lives with the past behind them. The old relationship is dead and they can begin anew, re-partner, and build a new family life.