The question of what percentage you will get in your Family Law property divorce settlement is sometimes a complex one to answer.
The Court considers a number of factors in determining what percentage you will be awarded by the Court.
The Court considers, amongst other things particular to each case:
- What are the assets which exist from the relationship at the date of the hearing;
- What assets need to be added back, if any, to the asset pool for assessment;
- What contributions have been made – both financial and non-financial;
- What future needs each party has which would warrant the court making an adjustment in their favour;
- What is fair in all of the circumstances of the case.
Starting at the last consideration, this is often not provided with the significant importance that it should. An experienced family lawyer will have careful consideration as to how a judge may ultimately divide assets in its discretion being “fair”. So, for example, if there are children of the relationship who are still residing in the home then the Court may be persuaded to allocate more superannuation to the other party who does not have the full-time care of the children such that the person with the full-time care of the children can retain the home. In other circumstances, particular assets such as farm machinery may be allocated to a party who has continued to work on the farm as being “fair” as it would be of more significance to that party than the other. There is no particular right of any party to retain any of the assets, and the Court may well in disputed cases over particular assets order that those assets be auctioned and permit the parties themselves to bid at an open auction for them if they so wish. In that way, no particular preference is provided to any party over the other.
The Court places significant weight on the contributions which each party has made. Of particular relevance to the Court is the length of the relationship. The Court will be more inclined to give back “dollar for dollar” financial contributions in a short relationship as distinct from a long relationship. So, it is often important and contested as to how long the relationship actually existed.
The Court places equal weight on non-financial contributions. So, for example, where a spouse or partner has remained home for the entirety of the relationship conducting “homemaker” duties and attending to the needs of children, the Court may well regard those contributions as equal to that of the other spouse who worked for the duration of the relationship and made some financial contributions to the assets.
At the commencement of a final hearing and each critical event along the way, the Judge or Registrar will ask “how do you arrive at the percentage” distribution being sought in your client’s case. The Lawyer (or party if self-represented) will need to be able to address the judge as to how the percentage is made up. So, the usual course is to advise as to what is being sought and why it is being sought as:
- financial contributions made during the relationship;
- non-financial contributions made during the relationship; and
- Future needs;
It is critical that the evidence supports the percentage adjustment being sought. The rules of evidence strictly apply in property matters before the court and there are sometimes complex considerations. Accordingly, it is often foolish to proceed without the assistance of a fully qualified and experienced family lawyer. The Court can only make decisions based on the case which is presented. This requires:
- Trial affidavits in admissible form;
- Expert evidence (such as valuations);
- Subpoena material (Court ordered documents from third parties relevant to the case); and
- Other documents such as Applications, Responses, Balance Sheets, Financial Questionnaires, ad Proposed Orders (properly drafted and enforceable).
While these look easy to complete (the forms are downloadable easily from the Courts website) they are very important documents and can, if improperly prepared, cost a party significantly.
It is important to see an experienced family lawyer up front to obtain proper comprehensive advice on your matter so you are fully aware of the range of outcomes, the risks and the process needed in your case.
There is no automatic presumption that any party is entitled to any percentage and each party will need to prove to the Court that they should be awarded the percentage being sought. It’s an urban myth that parties are automatically entitled to, say, 50% or any percentage for that matter.
We offer an initial no-cost conference with our Family Law team so we can better understand your case and provide some indication of the above matters on a preliminary basis.
I’m not happy with my family lawyer what should I do
If you are unhappy with your lawyer, then we would heavily suggest that you raise your particular concerns with your lawyer first. Moving from one lawyer to another can be costly and it may well be that your issue is not resolved by simply moving lawyers. For example, if your present lawyer is saying that you are only entitled to, say, 30% of the assets of your marriage/relationship – they may well be correct. There may well be a real reason why this advice is sound. While there is nothing at all wrong with getting a second opinion, in our practice I have on a number of occasions indicated that I agree with the other lawyer’s advice, only to be met with a potential client who goes to another lawyer who simply tells that client “what they want to hear”.
It is very easy to feed into the emotion of a client going through family law matters and accede to their views. However, a better lawyer will provide the benefit of their experience in honestly answering the questions of a client and providing an honest appraisal for a range of outcomes. I often use the example of a Real Estate Agent who can “buy a listing” from a client by simply offering a higher sale price estimate. Human nature is such that most of us want the highest dollar result. So, it’s easy to say to a client “yes I can run your case and there is a chance to achieve what you want”, its harder however to say “I don’t believe that what you are seeking is in the achievable range of outcomes for the following reasons……”. Giving an honest opinion does not mean that we don’t fight aggressively for your best case – we most certainly do. What it means is it empowers you to understand how a judge will determine your case so you can resolve your matter without spending every cent on a lawyer. Of course, cases often are required to be determined by a Judge as parties, for whatever reason, can not agree on an outcome. In such a case you need a lawyer who understands Family Law and has experience in litigated outcomes in court.
Another common complaint is “the other lawyer is saying everything, my lawyer doesn’t do anything”. Sometimes there is some merit in a clients complaint that their current lawyer is perhaps too busy or not engaged enough in their case to make them feel properly supported. It’s a challenge for all lawyers to juggle a number of cases and ensure that all clients feel properly supported. However, sometimes the loudest lawyer is not necessarily “the best”. Cases are won (and lost) on competent and proactive preparation. Often it’s the work done “behind the scenes” in the office which is most important. Issuing subpoenas, notices to produce, notices to accept facts and documents are critical matters in cases as well as gathering admissible evidence to win (prove) your case. These don’t need to be achieved by the “loudest” lawyer in court.
So, a proper assessment of whether your lawyer is “doing the job” is assessing whether they are providing you ongoing advice as to your range of outcomes in court and the risks and costs. Also, whether they are preparing a case for you in issuing subpoenas, preparing documents and gathering evidence (including your instructions/story) in the form of affidavits from key witnesses. If that’s not happening then your probably right to be concerned.
Again, always raise matters with your lawyer if you have concerned. Of course, we often get clients come to us who transfer because they are not confident in what their present lawyer is doing, however, remember in transferring your file there is added costs, possible delays and where possible you should at least provide your present lawyer with the benefit of understanding your concerns. They may not provide a response which you are happy with, however, you may well be pleasantly surprised.