Under the Family Law Act 1975, the court and legal system often use a 4 step process to decide what might be an appropriate division of assets between you and your ex partner.
In this 4 week blog series, we are going to explore 1 step at a time to help you understand the family law process you may find yourself involved in. This is week 3 and we are looking at step 3.
Step Three – Adjustments for Future Needs
Once we have assigned a percentage to the contributions made to the acquisition and maintenance of assets of the relationship, we then turn to look at each of your future needs and whether there should be some adjustment to that percentage to accommodate for these future needs.
Future needs are:
- The age and state of health of each party;
- Any income, property or financial resource of each of the parties and the ability of each party to receive gainful employment;
- Whether either party has the care or control of a child of the relationship;
- The commitments of each party that are necessary to enable that party to support themselves;
- The responsibilities of either party to support any other person;
- The eligibility of either party for a pension, allowance or benefit;
- The duration of the relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
- Any other fact or circumstance which the court considers should be taken into account.
An example of how future needs are assessed:
- A husband and wife separate with four children
- Since separation, the children have been living with the Wife
- The eldest child is 8 years and the youngest is 6 months old
- The husband is employed as a boiler maker and earns $80,000 per year
- The wife has not worked since having children, and prior to that worked part time at a supermarket
- The parties contributions to the assets of the relationship have been deemed to be equal
- When considering the future needs of the Wife, her ability to work will be hindered in some way for the foreseeable future. She has a 6 month old child who is still breast feeding several times a day and 3 children who are in school, and require care after school each day.
- In comparison, the husband is skilled, has a reasonable income and is able to work full time now and for the foreseeable future.
- The Wife could receive loading of between 10-15% bringing an equal division of the assets to 60-65% in the Wife’s favor.
It is not uncommon for superannuation to be dealt with differently to non-superannuation assets.
Let’s take the example above, where the Wife is allocated 10-15% loading after an assessment of her future needs.
The Husband has $45,000 in superannuation entitlements and the Wife has $15,000 in superannuation entitlements.
It is not uncommon for superannuation to be dealt with differently to non-superannuation assets. We may allocate 60-65% of the non-superannuation assets to the Wife, and equalise the parties’ superannuation entitlements.
The Wife has made an indirect non-financial contribution toward her Husband’s superannuation, by caring for children enabling him to work full time. In comparison, she has not received superannuation for many years as she has been out of the workforce.
Equalising superannuation entitlements provides the Wife a nest egg which will accrue interest over the coming years to assist her once she reaches retirement age.
Next week we look at Step 4: Is it Just and Equitable in practical terms and a real life 2019 example of how these steps are applied.
If you have questions about property settlement matters, you can contact one of our experienced staff to discuss how the Family Law system may apply to you.
Ebony Cunningham – Senior Associate
Ebony graduated with Honours in a Bachelor of Law and Legal Practice and a Bachelor of Behavioural Science (Psychology) in 2011.
Ebony specialises in the areas of family law, criminal law and civil litigation. Ebony is a member of the complex criminal panel and the family law general panel for the Legal Services Commission of South Australia.
(08) 8725 6969
Legal Secretary: Ms Lauren Lewis