Divide and Conquer Part 1: s79(4) factors in a Family Law Property Settlement

Written by James Frank | 10/04/16 10:47 PM

So, you’ve met with a lawyer. You have disclosed a whole bunch of documents (see our blog post ‘Don’t dis disclosure’ to find out more about that process). You have managed to ascertain what assets, liabilities and superannuation make up the total asset pool. Now it’s time to get to the nitty gritty of how your property will actually be divided. This blog post is Part 1 of our two part ‘Divide and Conquer’ series which will explain how a property division is determined.

s 79(4) factors – Contributions

The law stipulates that certain factors are to be taken into consideration when dividing the asset pool, the first of which is contributions. It is likely that you and your partner have made contributions to the relationship throughout its course. If these contributions were inequitable, it should be recognised in the property division. If your lawyer starts discussing ‘s 79(4) factors’, he or she is simply referring to the types of contributions outlined under the law which must be considered in a property division.

These factors include:

The financial contributions made by either party to the property pool
The non-financial contributions made by either party to the property pool
The contributions made by either party to the welfare and upkeep of the family in their capacity as homemaker or parent
The effect of any proposed order on either parties’ earning capacities
S 75(2) considerations (which can be found in Part 2 of ‘Divide and Conquer’)
The effect of any other order affecting the parties or children of the relationship
The effect of any child support orders in place.

Your lawyer will use a balance sheet to identify the financial contributions made by each party to the relationship. However, be wary of placing too much emphasis on financial contributions alone. It is important to remember that the contributions of a homemaker may be considered equal to those of the breadwinner.

Final notes…

Whilst you may be dividing property, these factors demonstrate that there should be no conquering involved. The law has stipulated specific considerations which are geared towards producing a just and equitable outcome. Abiding by these factors should prevent one party from conquering the other and ensure the interests of both parties are adequately recognised.

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