When parties to a marriage separate, there are a number of misconceptions that often arise as to the essential factors that a court takes into account where they are considering adjusting interests in respect of property. This often becomes an issue where disputing parties find to their surprise and detriment that decisions made by the court are different from that anticipated.
The 5 key matters a court will consider in adjusting property interests are:
- A determination of the assets liabilities and financial resources of the parties. The category of assets is all-encompassing and includes not only real estate and personal property but also such property as inheritances, lottery wins, awards and damages, and rights to pursue a claim in the courts. In addition it includes what is described as “notional property” which can be added back. For example monies paid for legal expenses from joint funds, assets that have already been distributed or assets wasted by one of the parties.
- An assessment of the financial, non-financial and family welfare contributions made by the parties to the marriage. These contributions can involve a consideration of assets brought into the marriage, monetary contributions made to various assets during the marriage, contributions made in the capacity of a homemaker and parent and even contributions made to property after separation. The longer the marriage lasts, the more likely that earlier contributions will be discounted heavily. In a long marriage where there has been no extraordinary contribution by either party then there is a likelihood that the court will consider the contributions more or less equal subject to what are known as section 75(2) factors.
- An assessment of the section 75(2) factors. This involves a court considering such factors as disparities in income and earning capacity, the responsibility for caring for children and other persons, age, health and other such factors.
- A consideration of justice and equity. Having embarked on the 3 factors above, a court will then look to consider what is “just and equitable” (Section 79(2)). This is not an easy task for a court to embark on. Essentially the court will look at the overall outcome of its deliberations referred to above to consider whether the overall result is just or not.
- Assessments at the time of the hearing. Generally speaking the court will consider these matters at the time of hearing. This means that the assets will generally be valued at the time of the hearing rather than earlier point of time.
If you have separated or considering doing so and is important to take these matters into account in considering your position.
At PBL we are often retained to provide advice and represent husbands and wives in family law disputes particularly with respect to property.
If you have a query or would like more information, we suggest that you consult with us on 4305 3500
