Property Settlement for Future Needs

Are you entitled to an adjustment in your property settlement for future needs?

If you have separated from your former partner, you may at some point find yourself before a court considering what orders should be made for division of property between you and your former partner. If you do, you will be amongst the minority.

Most people going through a separation will reach agreement as to how their property is to be divided and never see the inside of a court room.  If you reach such an agreement, you should ensure that it is confirmed by way of a consent order issued by the Family Court of Australia or formally documented by way of a binding financial agreement.

Even if you do reach an agreement with your former partner and avoid a court action, it is important for you that you obtain advice about your likely property entitlement at law.   This will help you in understanding what you should expect to receive or retain in a property settlement. It is an important tool in negotiations with your former partner.

If your matter was before a court, the court would consider what assets and liabilities form the asset pool that is available for division between you and your former partner.

A court would then consider the financial contributions and the non-financial contributions that have been made by both you and your former partner. You could expect that the court would determine what was the percentage entitlement of each of you in the property pool based upon those contributions.

A court would then consider what further adjustment if any should be made in favour of you or your former partner based upon what is commonly referred to as “future needs”.  This requires that the court looks to the future and decides whether there should be an adjustment of that kind based upon any of the relevant matters that are set out in section 75(2) of the Family Law Act 1975 (Cth) (FLA).

Some of the most common future needs factors that may result in an adjustment being made (out of the whole property pool) include:

  • Where one party only is of advanced years or suffers from some long term or permanent  health condition
  • Where one party has the ongoing care of children or primary care of children;
  • Where one party has a greater capacity to earn income going forward.

There are other factors that may lead to an adjustment. The following includes some of the relevant matters on which to obtain evidence relating to the above future needs factors which may apply in your case:

Age and state of health of parties

Consider:

  • If one party is nearing retirement age, will that person likely be retiring in the near future or continuing to work?
  • What is the nature and severity of any illness suffered by a party and is that illness long term or likely to be remedied (if so within what kind of period);
  • Does any illness of bad health condition of one of the party’s effect that person’s ability to care for any children or to earn income?

Care and control of children of the relationship who have not attained 18 years of age

Consider regards the party with whom the children live:

  • The number and ages of the children involved and the number of years remaining until the children turn 18;
  • How much supervision of the children is required;
  • How care of the children effect’s the lifestyle/ recreation time of the party who has care of them and that party’s ability to work;
  • The extent to which child support paid contributes towards the children’s expenses.

Consider regards the party with whom children spend time:

  • The amount of time that the children spend with that party and the extent to which that may relieve the other party of the burden of caring for children or allow that other party freedom of lifestyle/recreation and to be gainfully employed;
  • The number and ages of the children involved and the number of years remaining until the children turn 18;
  • Whether child support has been paid and the history of payments, including whether payments are likely to continue in the future;
  • The level of child support payments.

 

Earning capacity

Consider:

  • What has been the earning capacity of the respective parties over the period of the relationship;
  • Whether one party’s earning capacity has been affected by the relationship, whether due to caring for children or otherwise;
  • The current actual income of each party and the potential earning capacity of each party into the future;
  • If one party is not working or is not working full time, what  capacity does that party have for obtaining employment or other employment and what would be the expected level of remuneration of that party in that employment;
  • What training or further qualifications might a party need to obtain in order to obtain the employment;
  • Whether a party may receive or retain an income producing asset  as part of the property settlement;
  • The size of the property pool that is available to be divided between the parties in relation to the income and earning capacity of each party.

 

Contact our experienced family law team who is available to assist you to resolve your family law issues