When there is a problem with the marriage, we may first think of how to save the marriage. But if after various attempts, the breakdown of the marriage is still unavoidable, then you need to face several problems brought about by divorce, including dividing the common property in the marriage.

In the following article, Australia's Shengjing Law Firm will briefly clarify several principles in the distribution of spouse's common property and some important considerations in accordance with Australian laws.

[Australian law] How to divide property when a couple divorce
Definition of marriage and property

As far as marriage is concerned, no matter where you and your spouse are married, as long as your marriage procedures meet the local laws, your marriage is legally recognized in Australia.

In other words, your marriage in China and your marriage in Australia are both legal marriages under the laws here, and both are protected by Australian laws.

In addition to marriages under the law, de facto relationships are also protected by law in Australia. What we call de facto marriage means that the two parties have not gone through formal marriage procedures, but in fact their relationship is no different from that of a legal spouse.

The main considerations for determining whether a de facto marriage exists include:Whether there is cohabitation between the two parties, the time of cohabitation, and whether both parties have children, etc. If the relationship between the two parties is legally recognized as a de facto marriage, then the rights enjoyed by both parties with respect to joint property are no different from those of a married spouse.

As for the definition of property, property includes the property jointly owned by both parties and the property owned by one of them alone. For example, if the relationship between the spouses breaks down and starts to distribute the property, at this time the two parties jointly own a set of real estate, while one party owns a set of real estate alone. Assuming that both parties have no other assets, then the common property of both parties is the two sets of properties.

Please note that in this case, no matter when the property of one party was purchased (before marriage, after marriage, or even after the breakup), as long as the property exists when the two parties distribute the property, then the property will be considered It is the common property of both parties.

Steps to distribute property

After understanding the definition of marriage and property, we need to understand the specific steps and legal basis for the distribution of property in the law. Mainly speaking, there are two steps in the distribution of property:

(XNUMX) Establish the net assets of both parties

In this step, we will first establish the total value of both parties’ common property, and subtract the mutual liabilities of both parties to obtain the net assets of both parties. For example, if the common property of both parties is a set of real estate, but there is a loan under the real estate, then in the process of establishing the net assets of both parties, we need to subtract the loan amount from the total price of the real estate to obtain the net assets of both parties.

(XNUMX) Establish the respective share of each party's net assets

After establishing the net assets of both parties, we need to establish the respective share of each party. Generally speaking, the share will be expressed in the form of a percentage, such as each party gets 50% of the assets, or one party gets 60%, the other party 40%, etc. So how can we determine this percentage? There are two main considerations in the law:

  • Contributions of both parties in the marriage
  • The future needs of both parties for property.

When it comes to contribution, many people think that contribution refers to financial investment. In fact, it is not, because the contribution to the law includes economic contribution, non-economic contribution, and contribution to the family.

Economic contribution mainly refers to the financial investment of both parties to the family, such as who pays for the real estate, who repays the loan, who is responsible for the family's daily expenses and so on.

The non-economic contribution mainly refers to whether the two parties have some actions that cause the mutual assets of both parties to increase. The most direct example is that one of the parties has done some decoration and maintenance to the real estate, causing the real estate to increase in value.

As for the contribution to the family, it mainly refers to how much energy both parties have spent in caring for the family, such as who is responsible for cooking, cleaning, and taking care of children.

These three different types of contributions have equal status in the law, and there is no such thing as which one is more important. But according to past cases, if both parties have a shorter marriage, such as a marriage within five years, the economic contribution will have a greater influence on the final property distribution.

This is because in a shorter marriage, if one of the parties has more economic contribution, because the marriage time is shorter, it is difficult for the other party to make up for the lack of economic contribution through other forms of contribution.

Relatively speaking, for longer marriages, such as marriages of ten or fifteen years or more, the economic contribution of both parties has relatively low influence on the distribution of property, because the court will be more inclined to think that in a long marriage The contributions of both parties are equal.

As for the future needs of both parties, our main considerations include:

  • Income gap
  • Whether one of the parties has a disability, and whether his work ability is limited
  • Does the child live with one of them, etc.

The most common example is that after a spouse breaks up, one party is mainly responsible for raising the children, so the future needs of this party for property will be higher than that of the other party. Generally speaking, if one party's future demand for property exceeds that of the other party, the law will compensate the party with high future needs based on the contributions of both parties.

For example, if you consider the contribution separately, both parties will each get 50% of the property, but because one party is mainly responsible for taking care of children in the future and needs more property than the other party, this party may get some extra property on the basis of 50%. .