Ideally all financial matters in issue between you and your former spouse/ partner should be the subject of agreement. If you and your former spouse are able to resolve matters on an amicable basis, you can structure any such settlement in the most cost effective and constructive manner suitable to your own needs and wishes. Whilst the Courts will give you and your former spouse every opportunity to resolve the matter through negotiation or Mediation, as with children’s issues, they retain ultimate responsibility for making decisions about dividing the family or matrimonial asset pool in the absence of agreement.
If you and your former spouse are able to negotiate a settlement, it can be based on any structure or any methodology the two of you may choose. As long as any such settlement is not inherently unfair or patently impractical to implement, the Courts will normally approve such settlements.
In the event you are unable to reach agreement, however, then the lawyers advising you and your former spouse, as well as the Courts themselves, will look to structure a settlement based on the principles set out under the provisions of the Family Law Act. In doing so, the first step would be to determine whether or not any Orders are, in fact, required in the particular circumstances of your matter. Assuming there are jointly held assets or joint liabilities, that initial hurdle is easily overcome. Once the Court establishes that it is necessary to make Orders, then the Court determines property settlement by reference to essentially a four (4) step process, namely:-
1. The identification and valuation of the matrimonial asset pool. This includes assets belonging to both you and your husband individually as well as jointly. Property includes real estate, shares, motor vehicles, furniture, furnishings and household contents, bank accounts, interests in partnerships and the like.
2. The Court attributes a value (expressed in percentage terms) to the contributions which you and your husband have made to the acquisition, conservation and improvement of the matrimonial asset pool. In doing this the Court looks at the assets and liabilities which you and your husband brought into the marriage at the outset and during the course of the marriage. Part of the exercise also involves an assessment of the contributions that you and your husband have made as homemakers and parents.
3. All things being equal, the matrimonial asset pool would normally be divided by reference to the contributions. However, the Court must take into account a number of specific factors as part of the third step in the process. These factors include the age and the state of health of the parties; the overall financial circumstances of each of the parties; the obligations that each of the parties have to support themselves; the obligations that either of the parties have to support other people (especially young children), and various other matters.
4. Once the Court has taken into account the contributions and the various factors outlined in point 3 above, the final step is to assess whether or not the result so achieved is "just and equitable".
The longer the marriage or relationship has gone on the more difficult it is to convince a Court that contributions can be considered as anything other than equal. The general exception to this is in cases where there has been a significant entrepreneurial role by one or other party in establishing the asset pool or in cases where inheritances have been received prior to separation.
The mere fact you and your former spouse have either married or lived together for more than two (2) years gives rise to an obligation on each of you to support the other to the extent you can and they cannot. In making that assessment, however, the Court will look at the capacity each of you has to support yourselves, as well as the actual situation. For instance, if one party has a capacity to enter the workforce but, for reasons of personal convenience, chooses not to do so, then it may be possible to persuade the Court they have no need for financial support from the other party.