NSW Separation and Division of Assets in Property Settlement

[Veronique]

I am married with three very young children. We have our primary home in which we reside and an investment property. I received a compensation a few years ago due to a car accident which lead to my disability. I can only ever work 25 hours per week due to this disability. With this money we purchased these assets. Does the compensation money have anything to do with the property settlement proceedings? Should I start to getting all my paperwork ready?

We are discussing divorce after separation. My husband has said he will agree to 50% each of assets and that he will force me to sell the family home. Can he do this? Should I move out with the children?

I'm not sure what to do? Who to see? Solicitor? Are you able to give me any insight? I'm scared and I am hesitant to pack the kids up and leave. I will need to change their childcare and schooling.


Thank you for any help

 

[Sarah J]

Hi Veronique,

My husband has said he will agree to 50% each of assets and that he will force me to sell the family home. Can he do this?

Division of assets post separation is not as clear cut as 50-50 split. Obviously, if you and your husband agree on a 50-50 split, the law will likely honour this. However, if you and your husband cannot agree on a property settlement yourselves and you refer the matter to court, the court will consider a number of factors with the ultimate question being what is just and equitable in your specific circumstance. The factors taken into account include:

• Contributions made by each party prior to the marriage
• Any agreements entered into between you and your husband during this time
• Contributions made by each party to the marriage (income, mortgage repayments, gifts, housework and family maintenance)
• Dependants and other particular financial obligations (e.g. your disability)
• Relative earning capacity post marriage
• If you have children, then the financial obligations of the children
• Consideration of future needs

Also have a read of @Sophea's response in "Divorce property settlement post separation".

Does the compensation money have anything to do with the settlement proceedings?

If your compensation was from a personal injury claim awarded by court, then it can form part of the pool of shared assets. But each contribution depends on the facts and may not necessarily contribute. However, there have been cases in the past where the court has taken compensation awards from motor vehicle accidents into consideration when splitting the "shared pool" (e.g. Aleksovski v Aleksovski [1996] FamCA 111). However, the court will likely make a concession for this in the final division of assets to account for your inhibited earning capacity, injuries and need for future care and financing.

 

[Veronique]

Thank you. I appreciated the information.