What am I entitled to in a divorce?

Once a marriage has irretrievably broken down and the parties to the marriage have been separated for a period of 12 months, either spouse or both spouses jointly can apply to the Federal Circuit and Family Court of Australia for a Divorce Order.

Once the Divorce Order has become final, both spouses have 12 months from that date in which to apply to the Court for an Order providing for the alteration of their respective interests in the assets and liabilities of the marriage and the parties’ superannuation (the“net asset pool”).

In the case of a defacto relationship where two people have cohabited in a genuine domestic relationship for two years or more – the time limit for applying for an Order for Property Division is within two years of separation.

Section 79 (in conjunction with s75(2) of the Family Law Act (1975) sets out the considerations Court will apply when deciding on the appropriate Order for Property Division if it considers that such an Order is just and equitable. These considerations can be summarised as 4 main headings:-

  1. The financial contributions made directly or indirectly to the acquisition, improvements, and conservation of any of the assets;
  2. The non-financial contributions to the acquisition, improvements, and conservation of those assets;
  3. The contributions by each party to the welfare of the family, including in the capacity of homemaker and parent; and
  4. The future needs of each party (taking into account things such as Child Support assessed payments, the impact on the relationship, and the proposed order on each party’s earning capacity and the age and health of each party).

The parties to the marriage or defacto relationship can agree on the terms of an Order for Property Division and apply to the Court for an Order by Consent.

Alternatively, if agreement cannot be reached after meaningful efforts by alternative dispute resolution processes, one party may apply to the Court for a final Order for Property Division and also any interim orders that may be needed in the meantime (ie relating to discovery of relevant documents and valuations/sale of assets).

Once a final Order for Property Division has been made by the Court, that Order proscribes and concludes the parties’ financial relationship for all time unless in rare and unusual circumstances such as where there is evidence of fraudulent behaviour by one party that has influenced the consent to/making of the Order or if unforeseeable circumstances arise following the consent to/making of the Order that renders the Order patently unjust.