Gut feeling and the Family Court
Gutfeelingandfamilycourts
13-12-2020

How will your assets be divided between you and your former spouse after separation?

The Family Law Act sets out a framework to guide us or more specifically, to guide Judges.

On top of that, the Family Court has created many precedent judgements to guide other Judges and us further.

Why then can’t we just press a few buttons and receive an instant and accurate answer as to what we should and will receive from the asset pool?

The answer is that every case is different. No two relationships or marriages are entirely alike.

The differences may include:

  • the age of the parties
  • the earning capacity of the parties
  • the size and nature of their assets
  • the length of their relationship
  • the age of their children
  • the health of the parties and the children and needs, and much, much more.

The Family Court has stated many times that each case is different and needs to be determined on its own facts.

The first, perhaps little-known, point to address is whether it is just and equitable to make any adjustment of the assets of the parties or simply to leave them to each party according to legal ownership as they are without any adjustment or payment by one party to the other.

Once that is established, the Family Court has, over the years, using guidelines, set out in the Family Law Act, provided a four-step process to follow, which can be paraphrased as follows:

  1. Identify and value the assets,
  2. Assess the relative contributions (financial and non-financial) to those assets,
  3. Assess the relative needs of the parties,
  4. Arrive at an order that is just and equitable in the circumstances.

Non-financial contributions can include those made as a parent or homemaker, contributions made by way of labour and expertise (such as to renovations) or unpaid work within a business.

Financial contributions can also be broken down into direct and indirect financial contribution.

Direct financial contributions include:

  • bringing in a property to a relationship
  • providing a deposit from pre-relationship savings or
  • simply paying the mortgage and rates.

Indirect financial contributions can include payment of other expenses, such as:

  • food
  • utilities
  • holidays and even
  • entertainment

So how does a court decide?

The Court often must take into account a complex web of contributions by both parties particularly over a long relationship or marriage.

The judge must weigh up all of the factors of the individual case and based on their experience come to a conclusion that is just and equitable.

This is not an arbitrary process, but judges will often speak of a decision-making process that relies on ‘gut feeling’, ‘intestinal intuition’ or ‘instinctive synthesis’.

All relevant factors in relation to the contributions and the needs of the client should be presented to a Judge in a succinct, coherent and persuasive form.

Evidence in Family Law proceedings is usually presented by Affidavit. 

These need to be carefully crafted and need to comply with the rules of evidence. 

Freeman Family Law has great experience and expertise in helping our clients prepare Affidavits.

An experienced Family Lawyer such as the Lawyers on our team will also know the particular preferences of each Judge in the way they want evidence presented to them and what factors that Judge may or may not find of more greater relevance.

At Freeman Family Law, we have a vast experience (over 60 years) in these matters. We are able to provide the same ‘gut feeling’ given that experience and our knowledge of the court system.

If you want to know what your entitlements are, don’t go to Mr Google or to anybody else.

Come to Freeman Family Law for a thorough understanding of the asset pool, what you’re entitled to and how to ensure you get what you deserve.

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