In deciding how the net asset pool should be distributed, the court considers the following:
The net value of property owned by the parties (usually at the date of the trial) taking into account the current value of all assets and financial resources, and subtracting any liabilities.
Whether it is just and equitable to make an order altering the parties existing legal and equitable interests, taking into account:
- The financial contributions of the parties. These include any inheritances, gifts, assets, liabilities and financial resources owned by either party prior to the date of marriage or acquired during the marriage. The court also considers the financial contributions during the relationship and in some cases following the breakdown of the relationship, such as who carried out the work that earned the income, and whether both parties were involved in income earning activities.
- The non-financial contributions to the acquisition, conservation or improvement of any property eg a party carrying out the manual labour in building a deck and the effect that the deck had in so far as the increase in value of the property.
- The contribution made by a party to the welfare of the family, including in the capacity of homemaker or parent, this includes tasks such as caring for the children and housework duties.
- The future needs of both parties, also known as Section 75(2) factors. These take into account such matters as the age and state of health of each of the parties, the income, property and financial resources of each of the parties, the physical and mental capacity of each party for appropriate gainful employment, whether either party has the care and control of children of the marriage (under the age of 18 years), and a number of other factors.
The court then makes a determination as to what percentage of the net asset pool should be received by each party.
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Do I have to go to court, What does the court take into account when determining my property entitlements, What happens if I need support from my partner, Now that the property has been sorted out, how do I get a divorce?
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The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.