This is a frequently asked question in family law, what percentage of the property does the wife (or husband) receive after a divorce with children/without children? Fortunately, in addition to our own experience as family lawyers, there is some evidence we can turn to in answering this question.
Research study
A research study conducted by the Australian Institute of Family Studies (Division of matrimonial property in Australia, Research Paper no. 25, March 2001) found that:
The mean share to the wife is 55 per cent of the property and financial resources owned at separation.
Furthermore, 42 per cent of the respondents reported that the wife received 60 per cent or more of the property and financial resources owned at separation.
The share received by the wife for the low asset wealth group, and to a lesser extent those with medium asset wealth, is concentrated at the top end of the distribution (that is the wife typically received a majority share of the assets).
The share received by the wife for the high asset wealth group is concentrated at the low end of the distribution. Women in this group are more likely than other women to receive a minority share of the property but there is also greater variation in settlement outcomes among the wealthier couples.
Significantly, the research found that the current discretionary system allows for substantial variation in settlement outcomes.
Key findings
Pay close attention to these findings:
the current discretionary system allows for substantial variation in settlement outcomes;
wealthier couples have greater variation in settlement outcomes.
What does this mean for me?
This means, there is a wide range of possible outcomes that could happen to you. The family law system is not objective, it is subjective and it is discretionary, judges need to consider what is “fair and reasonable” in all the circumstances of your case in light of the law as it stands. This means that the way you negotiate and approach the subject, the story you tell and how you tell it, does have a bearing on how much property you are set to lose or to gain. When it comes to divorce or de facto property settlement, good quality legal advice can indeed pay off.
What factors are considered in a property settlement?
If your property settlement is decided by the court, the court will decide what is just and equitable (fair and reasonable) in your circumstances. The way your assets and debts will be shared between you will depend on the individual circumstances of your family.
The court will take into account:
your assets and your debts, and what they are worth when added together
direct financial contributions by each party to the relationship, such as wages
indirect financial contributions by each party, such as gifts or inheritances
non-financial contributions to the relationship, such as caring for children
future requirements – such as age, health, financial resources, caring responsibilities and capacity to earn
What does it cost to get a property settlement done?
If you on the other hand, you are able to discuss with your partner and reach an agreement, then there is likely to be no need for the court to become involved – so long as your consent orders have been properly drafted. A property settlement can be done using consent orders, or a binding financial agreement. There are valid reasons why you might choose one or the other but generally using consent orders is the best choice for most people.
At Jano Family Law we want you to have the highest quality family law services while knowing exactly how much it will cost you. Our fixed fee for a property settlement using consent orders is only $1,980 and the current court filing fee is $165. Our fixed fee includes superannuation splitting for most super funds, SMSE or defined benefit funds will incur a small additional charge. If you have done your online research, you will realise that our fixed fee is the lowest you can find for a real family lawyer to prepare and file property settlement consent orders for you.
What if we have not agreed about the property settlement?
It is always worth the time and effort taken to try and agree on the property settlement. If you feel that you are stuck in your discussions and can no longer make progress, the next step will be to move from discussion to negotiation. Lawyers are trained and experienced negotiators and a lawyer will be able to write to the other party or their lawyers, putting forward a settlement proposal based on your instructions and an understanding of family law. Lawyer led negotiation is often a very useful way to narrow down the issues in dispute and finally reach agreement on the terms of the property settlement.
If agreement is still not able to be reached, you may consider mediation. Your lawyer will assist you to prepare for the mediation, can attend the mediation with you, and should advise you before you sign any mediation agreements or settlement terms.
If the other party refuses to negotiate with you or to attend mediation, ultimately they will be ordered to do so by the court. Once you have initiated a court application (Initiating Application), the court will most likely order the parties to attend family mediation, prior to hearing the matter and making decisions for the parties. Family mediation is the preferred alternate dispute resolution option within the family law courts.