Pension and property complicate divorce proceedings

Date: Aug 17, 2015

Among the most important steps for the parties going through the divorce process is to ascertain the assets held by them individually or jointly and distribute those assets according to each party's contributions and future needs.

In many cases, this division can be determined by the couples with the help of a divorce lawyer. However, there are other cases when the courts need to be involved in order to reach an equitable settlement.

This was seen in a recent case before the Australian Family Court, with the Court required to divide a couple's property following their separation in 2012.

Among the core reasons for the case to progress as far as it had were the various financial obligations that each of the parties had. One individual had a pension fund from their work prior to marrying, while the other had owned a franchise of a business during the course of their relationship. The business still had outstanding expenses that formed part of the parties' joint financial liabilities at the time of the judgment.

To resolve this, the Court distinguished between two pools of assets available for the division as part of property settlement. The first contained the couple's assets, including a number of classic cars and pieces of jewellery, as well as cash and their respective superannuation funds.

The second consisted of the wife's pension from her previous employment, which the husband sought a share of. The Court determined that there were grounds to allocate 5 per cent of the pension fund to the husband.

However, because this would reduce the wife's ongoing income, the Court ruled that the 5 per cent the husband was awarded from the wife's pension fund be reflected in an adjustment in his share of the first asset pool.

The process of negotiating a property settlement can clearly be a challenge, especially if those involved possess a number of different asset classes, such as a pension or superannuation. Dividing these in an equitable manner requires expert legal advice, even if a case doesn't reach the courts.

For more on the process of reaching a property settlement as part of the divorce process, individuals will need to seek the services of a family lawyer with expertise in this area.