Settlements during divorce usually revolve around the distribution of any assets in the family home. Part of the decision of how to split these assets is based on direct and indirect financial and non-financial contributions made by the couple. The outcome depends on specific considerations which change from case to case.
The Courts will take into account:
- Assets and liabilities of both parties
- Assets before the relationship started
- Direct financial contributions (such as wage earnings or receiving an inheritance)
- Indirect financial contributions (such as DIY renovations to increase property value)
- Non-financial contributions (such as looking after the children and home)
- Relationship length (shorter and longer relationships may have assets split differently)
- Children from the relationship and who they will reside with
- Future needs (such as health, ability to earn an income and superannuation)
Sharing family responsibilities
While some families continue to split both financial and non-financial duties after having children, others fall into a pure role-divided relationship, being either the breadwinner or the stay-at-home parent. Both roles can incur a personal sacrifice to contribute to the greater good of the family, and each party can feel that their sacrifice was greater. The breadwinner could feel unfairly separated from their children if they are not living under the same roof, while the stay-at-home parent may feel they do not have the same career opportunities after their time taken out of work to raise the family.
If you are a stay-at-home parent, was your contribution to the family home equal to that of the breadwinner in the eyes of family law?
Generally, the value placed on the homemaker is considered of equal importance to the breadwinner’s financial contributions. The Courts understand both contributions are substantial and significant, and should not treat one contribution as less important than the other. Australia prides itself on its Family Law system, and the ‘stay-at-home parent penalty’ shouldn’t apply in the vast majority of Family Law divorce settlement cases.
Many couples find an amicable solution to divvy up their asset pool without the need of the Courts, but there are many who need to fight for what they deserve. In these cases, the Courts will divide property (including real estate, vehicles, furniture, bank accounts etc.) by considering the following:
- Valuing the assets (property) of each party if the parties cannot agree
- Assessing contributions made by each party
- Considering arrangements for children or other dependents
- Determining the income of each party
- Determining whether the proposal is just and equitable
The disclosure of all assets to the Courts is imperative and failing to do so in an attempt to retain that asset can have unfortunate consequences. Our client came to us after her ex-husband was found to have not disclosed a large sum of money. We successfully obtained 75% of this sum.
In the eyes of Australian Family Law, the stay-at-home parent is equal to that of the breadwinner, and this can be determined during property settlement. However, there are often further, ongoing financial obstacles to resolve, such as childcare costs if a stay-at-home parent wants or needs to go back to work.
Spousal and child maintenance
Once divorce proceedings are finalised, the Courts may introduce spousal and/or child maintenance to ensure that the day-to-day lives of everyone involved are cared for. Here, the main breadwinner may need to contribute payments to the stay-at-home parent and children to alleviate any ongoing income issues after the marriage or de-facto relationship breakdown.
Both parents have a duty to financially support their children. In the case of separated and divorced parents, this can take two forms, either child support or child maintenance. Child support is paid by a parent and is related to the financial support of a child under 18 years of age. Child maintenance is paid by the parent and is related to the educational and medical expenses of a child over 18 years of age.
Child support is calculated by considering multiple factors, including:
- The costs of children in various age ranges;
- The capacity of the parents to meet those costs;
- The income of the parents; and
- The time that each of the parents spends with the child.
Spousal maintenance can only be applied for within 12 months of divorce and within 24 months of de-facto separation. It is awarded when the applicant is unable to financially support themselves to a reasonable standard of living after the breakdown of a relationship or marriage. This may be because the applicant put their career on hold to look after the family, or they may have put their studies on the back burner to support their partner’s ambitions.
Spousal maintenance can only be awarded if the respondent has the means themselves to support their ex-partner. Spousal maintenance is not a permanent solution, and is paid only until a predefined date set, either until the applicant is able to independently support themselves, or until the property settlement is finalised.
How can Taylor & Scott help?
A divorce proceeding is often a turbulent and emotional time. To ensure you get the best possible outcome, it’s worth hiring the help of a professional family lawyer.
Having a Taylor & Scott lawyer by your side during a difficult process will help disburse your stress, allowing you to focus on the wellbeing of you and your family. For legal advice, you can count on, contact us on 1800 600 664 or email us at info@tayscott.com.au
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