It is with regularity that family lawyers are buttonholed at
social events to provide some impromptu advice to someone going through a
property division.
What is consistent through these conversations is how little
many people understand of the process, how much people cobble together their
own solutions based on what is ‘fair’, and how infrequently lawyers are
consulted at an early stage to provide some guidance and frameworks for
discussions between parties.
I can recall a matter that was brought to me where the
parties had been spending an inordinate amount of time dividing and ascribing
value to each and every item of furniture or household appliance and dividing
these in a way that was reflective with their respective incomes; but had no
idea that they might be entitled to some of each others’ superannuation, a
significant oversight that would have resulted in one party missing out on
almost $100,000 of superannuation.
So what is the broad overview of the process that family
lawyers will apply?
- Identify your assets, liabilities and superannuation as at present. This is commonly called the ‘asset pool’
- Identify what contributions were made into the relationship, including both financial and non-financial contributions. This will mean knowing what you had at the beginning, what you had at the end, and how you got between those points.
- Identify what your and your partner’s future needs are – whether they relate to income disparity, care of children, ill-health and medical costs, or your age.
- Determine whether it is just and equitable to proceed with any alteration of your existing legal rights at all, as well as whether the final result as determined by the above 3 steps results in an outcome that is just and equitable and also practical.
These steps are simple in some senses but as with
everything, the devil is in the detail of the implementation and the ‘edge
cases’.
Consulting a family lawyer early for guidance to inform your
discussions, identify any problematic issues and define your expectations is
one of the most sensible investments of your money post separation you can
make.
