I have lost count of the times a client, struggling with the emotional pain from the breakdown of a relationship, has asked me to ‘take ‘em to the cleaners’
We all know what the phrase means of course, particularly in a matrimonial relationship. Take all the assets and leave the other party with nothing. After all, don’t they deserve it? Leaving the relationship and their former partner in deep psychological distress and emotional pain deserves retribution doesn’t it? The client is hurting and wanting pain inflicted on the other party, to seek revenge by taking aim through their wallet. But can you really take ‘em to the cleaners? Is that really possible in the no fault system under the Family Law Act?
To the angry former spouse standing, hands on hips and demanding that because the other party left they should be ‘taken to the cleaners — I’m sorry, it’s just not an option in the Family Lawyer tool kit. The only party likely to get “taken to the cleaners” is the client, attempting to pursue an unrealistic outcome. The only winner, in such a scenario, is the lawyer. That’s not a good option for anyone.
When it comes to the division of property, Family Lawyers apply the basic well-established family law principles of the four-step process of determining the assets and liabilities; consider the contributions both financial and non-financial; consider the ‘75(2)’ factors and then consider whether the proposed outcome is just and equitable, in the circumstances.
A consideration of the assets involves determining all of the assets and all of the liabilities of the parties, as well as any financial resources available, reaching agreement on values or obtaining independent advice for this purpose.
When the asset pool has been established, consideration is taken of the financial and non-financial contributions; assets brought into the relationship, inheritances monetary or significant property gifts and non-financial contributions. The latter could be labour, by the parties or others, perhaps tiling, plumbing fencing, construction or landscaping property of the parties. It can be bookkeeping or office work performed in a business operated by the parties as well as contribution as a homemaker and parent.
Other factors outlined in the Act, often referred to by family lawyers as the 75(2) factors, take into consideration future needs, the parties’ age, state of health and capacity for employment, the parties’ standard of living, the care of children under the age of 18; whether child support is being paid, a spouse’s need for support, whether there is a new de facto relationship and if so its financial circumstances and several other factors, depending on the parties’ individual circumstances.
Having considered those factors, the court reviews a range of possible outcomes and then turns its mind to whether the outcome sought is just and equitable in the circumstances. This important consideration ensures that justice and fairness is part of the decision.
Take ‘em to the cleaners, or the desire for vengeance or retribution plays no part in our no-fault system where, except in certain exceptional circumstances, the conduct of the parties is not taken into account. Those circumstances are a subject in themselves.
The above outline is merely a snapshot of how property division is approached and does not constitute legal advice. Individual circumstances differ greatly and seeking advice from an experienced Family Lawyer will assist you to determine what is an appropriate range of outcomes in your particular situation.