Spouses always seem to struggle to keep their relationship alive
Spouses always seem to struggle to keep their relationship alive

Cheating wife ‘seething’ over ex’s payback

Welcome to Sisters In Law, news.com.au's weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help a woman going through a messy divorce.

QUESTION: I'm going through a very messy divorce that gets worse by the day. I'm not proud of it but I had an affair which ended up being the final nail in the coffin for our already dead 15-year marriage. We have two kids together and have decided to do 50/50 custody. The biggest problems we're having are over money - I'm from a much wealthier family than him and my parents gave us the deposit for our first house and also gave us lump sums of cash to tide us over when I was on maternity leave. Apart from when I was on maternity leave, we've always earned similar amounts and put the same into our mortgage and bills. Now he's saying that he wants at least half of everything (or more!) as it's my fault we're divorcing in the first place. Does he have a right to have half of everything even though my parents gave us the money to buy our biggest asset - our house? I'm seething and can't bear him being so greedy. - Stacey, NSW

Prenups are actually quite rare. Picture: iStock
Prenups are actually quite rare. Picture: iStock

ANSWER: You'll be relieved to know that in Australia the affair plays no relevance to your divorce or the property settlement.

The property settlement involves dividing assets and any liabilities. It is an important part of a separation as it is a final resolution allowing each person to keep any assets they received as part of the settlement and move forward with their lives.

You haven't specified if you have a binding financial agreement (commonly called a 'pre-nup') that was entered into prior to your marriage. They are relatively rare, so we'll work on the basis you don't have one.

When considering the division of property, it doesn't matter who is responsible for the breakdown of the marriage, and moral considerations as to a person's conduct during the marriage have no relevance either.

Property is not divided using a precise formula or a 50/50 split and no-one can tell you exactly what a court may do.

This is because a court will make the decision after hearing all of the evidence and based on the unique circumstances of your case.

Property is rarely divided 50/50 after a split. Picture: iStock
Property is rarely divided 50/50 after a split. Picture: iStock

For this reason, it is also really important not to compare your situation to others who may have also been through a property settlement.

The steps a Court will use to determine a property settlement are:

1. Identifying and valuing all assets, liabilities and financial resources

This is to work out the value of the "property pool". Everything must be included here, from your car, cash and house, to any debts or loans.

2. Assessing, identifying and evaluating each person's contributions to the property pool

All financial and non-financial contributions must be considered. Homemaking and parenting (including when you were on parental leave) are just as important as the financial contributions.

The initial contributions you and your former husband made at the start of the relationship will also be taken into account, as well as any gifts received (like money from your parents) and how they were used.

3. Assessing both of your current and future circumstances

The age, health, current income and many other factors are considered for both you and your ex-husband, as well as the age of your children.

4. Just and equitable requirement

This is a checking mechanism to ensure that distributions decided on are fair and equitable taking everything into account.

Reaching an agreement with your ex without going to court is much cheaper and often quicker. Picture: iStock
Reaching an agreement with your ex without going to court is much cheaper and often quicker. Picture: iStock

It goes without saying that if you can reach an agreement with your former husband on how your property should be divided without any court involvement it will be a much cheaper and often quicker process.

It may be worthwhile to seek legal advice from Legal Aid, a community legal centre or a law firm to ensure you are receiving what you are entitled to.

There are also independent family dispute resolution practitioners available that can assist former spouses in coming to an agreement.

If you do agree on the division of property you may choose to formalise your agreement by applying for consent orders in the Family Court.

If you can’t reach an agreement you might need to go to court. Picture: iStock
If you can’t reach an agreement you might need to go to court. Picture: iStock

If you cannot reach agreement, then you can also apply to the Court for orders about the division of property and any payment of spousal maintenance.

You in fact can't make this application until you have tried to resolve the dispute out of court.

The Family Court website is a great source of information and would be a good starting point for you.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au

Get more from Alison and Jillian on their Facebook page

 

Originally published as Cheating wife 'seething' over ex's payback


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