Asset by Asset – Division of Property in the Family Court

20/11/2018

The Family Court and Federal Circuit Court apply a process for determining division of property.  This process generally involves a pooling (adding together the value of all the property and deducting the liabilities from that value) then based on the net value and all the relevant factors involved in determined the appropriate division of the property by dividing the property and liabilities between the parties.  This global approach is generally adopted by the Court, however the Court has other methods which in appropriate circumstances can be adopted which will affect the outcome of the division for each party.

The Family Court can take an asset by asset approach or what is called a “two pool” approach.  This different approach can make a case more complex and will not readily be adopted by a Court.  The Court would have to be persuaded that it is an appropriate case for the Court to depart from the global approach and for the Court in dividing the property to deal with the property on an asset by asset basis.

Such examples could include:

  • Where an inheritance was received late in the relationship by one party and perhaps after separation.
  • Where the relationship between the parties is very short the Court might take the view that it would be appropriate to “undo” the asset pool rather than take a global approach. 
  • Where one party has significant amount of superannuation and the other available property is small. 

Care should be taken not to be persuaded into easily adopting an asset by asset approach because this can result in exclusion of property from the pool leaving only a smaller pool of property for division between the parties.

Watson & Watson was able to resolve a matter in a very advantageous manner for their client in circumstances where the other solicitor contended for a “two pool” approach.

Watson & Watson acted on behalf of the wife.  It was asserted by the husband’s solicitors that a property owned by the husband at the commencement of the marriage should be dealt with separately and that the husband should retain that property and that the wife should receive no division of money equal to a proportion of the value of that property.

The consequence would be that the significant property was not available to the wife and that the husband and wife would then have had to share in a division of the balance of the property which in this case, as in most (but not all) such cases would be of lesser value. 

The Court took the view that a “two pool” property division was not appropriate by reason of the fact that the marriage was for a significant period.

The parties had both contributed in different ways to the payment of mortgages during the relationship.

There was evidence of pooling of income.  The parties maintained some separate and some independent accounts.

This two pool approach resulted in a favourable outcome for our client.

If you have concerns or queries in relation to your property/financial settlement, how the “two pool” approach could affect the outcome of your property/financial settlement whether to your benefit or detriment or the likelihood of the Court adopting the “global” or “two pool” approach, please contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and clarify this important aspect of property/financial settlements.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

Related Cases & Articles

Personal Experienced Professional Affordable

Phone 02 9221 6011

Send us your enquiry
Book an appointment Request a quote Send your question
Online enquiry form

Watson & Watson are always available to provide expert legal advice and answer any questions you may have.

All enquiries received will be responded to within 24 hours.

Call: 02 9221 6011