How do the courts decide who gets what in terms of assets and property after a separation or divorce?
The courts generally take into account what assets there are and their value; what contributions each party made to those assets, both in money terms and as homemaker and parent. The courts also take into account the future needs of the parties, particularly in terms of the care of children and the income and earning capacities of the parties.
The Family Courts usually won’t take into account any bad behaviour or conduct, including the conduct which actually led to the separation. But there are exceptions to this rule, and the major exception relates to violence.
In 1997 in a famous case the Full Court upheld a decision that an additional share of property should be given to a wife who had been the victim of serious violence during a five-year de facto relationship. The Court ruled that violent conduct by one party towards the other during a marriage or de facto relationship causing significant adverse impact on that person can be taken into account in assessing the parties’ respective contributions to the asset pool.
There has to be significant violence for this sort of ruling, however. The courts don’t of course approve or condone violence at any time. But if there are individual incidents, not too severe and often coming at the end of the relationship, such conduct usually won’t be given any weight in giving one party an extra share of property.
But the situation can be different where it is shown that there has been a pattern of violence over a period of time of a coercive and controlling nature; or such conduct which can be described as ‘domestic terrorism’.
From the victim’s standpoint, it is of course necessary to prove such allegations of violence. This can be done by producing proper evidence, including medical and police reports and witness statements where available.
Such conduct will be taken into account by the courts and the victim given significant compensation for the harm and trauma they have been put through.
Of course it is better to avoid violence and prevent it occurring in the first place. Where it does occur, it is important to take positive, remedial action. It is much better for parties to avoid court proceedings and come to a sensible resolution of their issues outside the court system. But where there has been serious violence, the courts are there to assist to a just resolution of property issues in an effective way. Such resolutions, whether outside or through the court system are best brought about with the assistance of a friendly and experienced family lawyer who can help you to the best possible settlement.