Does My Wife Get Half of Everything in a Divorce?

Shahn Beasley-Reickenvater

Senior Associate Aitken PartnersView Profile

No. Australian family law does not automatically divide assets 50/50. Every relationship is different, and finalised property settlements are determined by a range of factors unique to each couple's circumstances. If a couple cannot agree on what is fair, the Court may decide how assets should be divided.

What is my wife entitled to in a divorce?

When considering a divorce, couples may wonder what their partner will be entitled to, given they have performed very different roles in the relationship. Unfortunately, there’s no cut and dried answer. A 50/50 split is not automatic. Each individual divorce is unique, and the personal and financial circumstances of each couple will differ.

In this article, we’ll look at the factors involved in how the Court determines a split of assets after a divorce.

Key questions people usually have about the divorce process:

• Does applying for a divorce split all of our assets?
  • No, the paperwork to finalise the ending of the marriage is separate to a Property Settlement and Financial Agreements which finalise the separation of assets. But these are commonly referred to as part of the overall divorce process.

• Do I have to go to court to finalise the separation of assets?
  • No, you may be able to resolve everything through Mediation or Family Dispute Resolution (FDR), which is explained at the end of this article. However, if a couple is unable to agree, they may be required to go to court so a Judge can decide on the matter.

The Split of Assets After Divorce in Australia

A set of considerations under the Family Law Act 1975 determine how assets are divided during a divorce in Australia. The primary goal of these principles is that the division of assets between a married couple is just and equitable. There is no fixed formula for dividing assets, and it will vary, according to your situation.

The Four Step Process

When working out what is just and equitable, the court will consider the following key factors:

What are the assets in existence

The property, income, and financial resources of each party in the relationship are considered in the settlement, held both jointly and separately.

Liabilities are also factored in as part of asset division. Credit card debts, personal debts, loans, and mortgages are all considered.

Assess each party’s contributions to those assets

During a marriage, each party will perform different roles and make varying contributions, whether they be financial, non-financial, or as a parent or homemaker.

Key financial contributions that are considered include:

• Savings brought into the marriage or accrued during the relationship
• The application of income to the purchase of assets or accumulated savings
• Assets brought into the marriage
• Assets acquired whilst married
• Inheritances and windfall gains

Key non-financial contributions considered in a settlement agreement include property renovations or property upkeep.

Parenting and homemaker contributions include:

• Day to day care and raising children
• Managing household duties, including finances.

Importantly, the Court will also consider the effect of family violence on either parties ability to make any of those contributions.

Evaluate each person’s current and future circumstances

It’s not only the contributions of each party that are considered in a divorce settlement. The current and future circumstances of each person are factored in. These include:

• The income and earning capacity of each party
• Their age
• Their health
• The impact of any family violence
• The financial responsibilities of each party
• Either parties’ care of children or other family members
• Financial resources such as trust income that either party may be entitled to.

The Court will consider whether the proposed division of assets is “just and equitable in all the circumstances” of the marriage

Regardless of whether or not you are talking about a husband, a wife, or a de facto partner, parties are entitled to a just and equitable share of the assets. Sometimes the practical division of the assets may be contentious, and the Court may consider whether it is appropriate to sell the family home or to retain it for the children to continue living in.

Spousal maintenance

If one party can’t support themselves adequately after a divorce, the court may order spousal maintenance be paid to them by the other partner. Spousal maintenance support is calculated based on:

• Firstly, the party claiming spousal maintenance demonstrating a need for financial support; and
• Secondly, the party paying the spousal maintenance having the financial capacity to do so.

How to find out what my wife will be entitled to:

Sometimes it is the case where the wife has undertaken primary care of children, and the husband has earned an income and progressed in his career. To achieve equity into the future, the law may consider the need to adjust the settlement to compensate for this earning discrepancy. But this is only one of many factors, weighed against the various contributions that parties have made and the competing current and future needs of each party.

So, if you are asking, what is my wife entitled to in a divorce Australia? You should seek legal advice. Our divorce lawyers at Aitken Partners can help you gain a clearer picture.

Mediation Process

Mediation or Family Dispute Resolution (FDR) is a recommended process to help you and your former partner resolve any disputes you may have in regards to property settlement. This keeps matters out of court, and keeps legal costs down.

The formal outcome of this process is known as a Binding Financial Agreement, where you and your ex-wife both seek independent legal advice to ensure you both understand what has been agreed to. A BFA is a private agreement and does not need Court approval.

Read more here about Binding Financial Agreements and Property Settlements.

If you do end up going to court, a court will decide on the distribution of assets and make legally binding orders, (known as Consent orders).

If you are needing advice on divorce in Australia, contact Aitken Partners. Our divorce lawyers can help our clients achieve mutually agreeable and respectful divorce outcomes. We are proud to be recognised as leading divorce lawyers in Australia.