50/50 Property Settlement: Is it Achievable?

Some couples assume that on separation the assets they own in common would be split on through a 50 50 property settlement. 

When a marriage or de facto relationship breaks down, it becomes necessary to divide the property and financial resources accumulated during the partnership. This process, known as a property settlement, aims to achieve a fair and equitable distribution of assets.

The way that the assets are divided does not begin with any specified ratio as a starting point. Not 50/50, 60/40, 70/30 or other. On average we see the division occurring on a roughly 60:40 basis. However every situation is unique.

Having said that, there is no reason why a couple cannot agree to a 50:50 settlement if there is consensus between them on this point.

What determines the split of assets in a property settlement?

Before dividing the assets, the total assets and liabilities (aka the asset pool) need to be identified. This would include everything owned individually and collectively by the couple. This may include:

• Family home
• Superannuation
• Cars
• Jewellery
• Debts
• Loans
• Inheritances
• etc

The second step is looking at how each party contributed, both financially and in other ways to the relationship.

This could cover:

• Salaries
• Gifts
• Inheritances
• Centrelink payments
• Raising children
• Renovations
• Looking after the house

Following this, we need to factor in the future needs of each person. This will take into account issues such as future living arrangements, earning capacity, whether one will take a primary role in caring for children, and so on.

Finally, all factors above need to be reviewed from the perspective of whether the division as a whole would be “just and equitable” for both parties. At this stage, adjustments can be made to ensure that the outcome aligns with a fair outcome.

Does this result in a 50/50 division of assets? Sometimes, but usually not.

What is the average split in a divorce settlement in Australia?

According to a study conducted by The Australian Institute of Family Studies, in 79% of cases, there was a 60:40 division of assets between the two parties. 

This was in favour of the female partner, particular as the female member of a couple bears financial responsibility of raising children. 

50:50 divisions are more common amongst high net worth individuals.

Who loses the most in a divorce?

Divorce can be emotionally and financially challenging for both parties involved. However, it is difficult to generalise who “loses” the most in a divorce, as outcomes vary depending on the circumstances. 

In some cases, one party may have made significant financial contributions, resulting in a larger share of the assets. 

On the other hand, the division may prioritise the future needs of one party, such as custody of children or ongoing financial support.

How do you negotiate the division of assets?

Couples usually have several options to consider when it comes to dividing their assets:

Informal agreement

Couples can choose to independently reach an agreement on asset division without involving the legal system. While this approach may be more casual, it’s important for couples to document their agreement to prevent potential disputes in the future.

Binding financial agreement (BFA)

A BFA is a legally enforceable document that outlines how assets will be divided in the event of a divorce. Opting for a BFA provides couples with certainty and control over the asset division process.

Consent orders

Couples can seek court approval for a formal agreement on asset division through consent orders. This option offers a level of certainty as the court’s approval makes the agreement legally binding. Couples typically submit their proposed agreement to the court for review and approval.

Litigation

If couples are unable to reach an agreement through negotiation or other means, they may resort to litigation. In this case, a judge will make the final decision on the division of assets. However, litigation can be a lengthy and expensive process, and the outcome may be less satisfactory for both parties since the decision rests solely with the court.

FAQs

Which assets get divided after a divorce?

In a divorce, all assets accumulated during the marriage or de facto relationship are generally subject to division. 

This includes properties, bank accounts, investments, businesses, vehicles, household items, and even superannuation (pension) entitlements. 

Debts and liabilities are also considered when calculating the overall financial position for division.

Is the property settlement for de facto couples the same as for married couples?

In Australia, the property settlement process is similar for both married couples and de facto couples. The Family Law Act 1975 covers property settlements for both types of relationships. 

To be eligible for a property settlement, de facto couples must have lived together for at least two years or have a child together. 

Can you get divorced without a financial settlement?

Absolutely. 

It’s important to note that divorce and the process of dividing assets are considered as separate legal proceedings. It is advisable to initiate the asset division process before finalising the divorce itself. 

This precaution is necessary because the asset pool can undergo changes following separation, such as the acquisition of additional assets or the receipt of inheritances, which may be subject to division between you and your former partner. 

Furthermore, if one party accumulates debt after the separation, it can significantly impact the division of assets. 

By promptly addressing the division of assets, you can ensure a fair and accurate evaluation of the assets and liabilities involved, thereby minimising potential complications and future disputes.

How long does a divorce settlement take?

The duration of a divorce settlement can vary depending on the complexity of the case and the level of cooperation between the parties. Simple and uncontested settlements may be resolved relatively quickly, often within a few months. However, more complex cases involving substantial assets or disputes over child custody and support can take significantly longer, sometimes spanning several years. It is essential to be patient and work through the process diligently to ensure a fair and satisfactory resolution.

Final point

If a couple is content to divide their asset pool on a 50/50 basis, then they can do so. They would formalise this agreement through a financial agreement (BFA). If however they negotiate this through the Courts, then is is statistically unlikely to result in an exact 50 50 property settlement.

If you want to speak to some family law pros, then feel free to contact our friendly team. We would be happy to see how we can assist you. Book in a chat here.