Dividing Assets During a Divorce—Is It Complicated?

Posted on: 24 February 2021

Dividing assets as part of a divorce doesn't necessarily mean that these assets will be equally split between the two parties. This is something you might have seen in movies and TV shows, but that's because this is an aspect of divorce law in California. But you and your spouse are separating to divorce here in Australia, where there isn't an automatic 50/50 split of assets. How are assets divided? It can be a complicated process, but it doesn't have to be.

Separating Your Finances

In Australia, you and your partner must be separated for a minimum of 12 months before filing for divorce. The separation of your finances is generally mandatory for proving that your relationship has ended. This means that any joint financial matters (such as a shared bank account) must be wound up with separate accounts being opened in each party's name. You shouldn't overlook this crucial step so that the date of your separation and the allowable date for divorce isn't called into question. 

Terms of Divorce

The best-case scenario is that you and your partner will amicably work out the terms of your divorce yourself, covering the division of assets, child custody, and any financial maintenance. You can then file a joint application for divorce which has all the details largely finalised. Family lawyers can be useful during this stage. Using a lawyer doesn't mean any sort of escalation, and it can simply be an advisory service, ensuring that the proposed terms are fair and equitable. 

When Disputes Arise

An amicable solution isn't always possible, as marriages don't always end on friendly terms. In this case, the terms should be mediated by a Family Court of Australia resolution service (the Family Dispute Resolution Service). Since key features of divorce are now being disputed, it can be beneficial to engage a lawyer to negotiate these agreements on your behalf. Your finances and those of your partner are examined by a representative of the court, who then makes certain recommendations based upon the information. Disputes don't mean that you cannot get divorced; in any event, either party can file a sole application for divorce, with divorce papers then being served to the other party. 

The division of assets may end up being an equal 50/50 split, but this certainly isn't automatic. This is why it's important to realise that you and your partner will need to do your best to come to an agreement that is suitable for both of you.