Identifying and valuing the property between the parties
This is the logical first step. Unless the property between the parties is identified and valued it cannot be divided in such a way as to end their financial relationship in a just and equitable manner.
Property includes both assets and liabilities. Commonly assets may include a family home or investment property, land, household goods, vehicles, money and superannuation, but it is worth bearing in mind other items, such as intellectual property, debts due to either of the parties, shareholdings, partnership interests, redundancy payouts or long service leave entitlements already received at the date of property settlement, entitlements as beneficiaries of a trust or a will etc. One thing that is not regarded as property is the ability to borrow, so one party will not be entitled to a larger share of the property on the basis that the other has greater borrowing power, but see the discussion of how differing future needs may be taken into account below. Liabilities may include a mortgage, credit card debts, overdrafts, personal loans etc.
Property (that is, assets and liabilities) belonging to a party before the relationship is still that party’s afterwards. There is no law that it must be automatically transferred into joint (both) names. The same applies to property acquired in only one party’s sole name after the relationship has ended. However, when it comes time for property settlement the law will look behind the legal title of all items of property then between the parties and ownership may be changed, notwithstanding whose name an item of property is in.
It is a good idea for parties who are separating to put together a list of all of the assets and liabilities between them (and record against the list in whose current ownership or control each asset or liability is in). ASIC's MoneySmart Asset Stocktake Calculatormay be useful in this process. You can enter all of your assets (including their value and anything owing against them) and liabilities to work out your net assets and email the results to yourself or someone else.
The net pool of property and its value is usually considered at the date of property settlement (whether by consent or at a hearing), even though this may be some months or even years after separation.
It is usually necessary to access and gather relevant documentation and/or independent market valuations to put together an accurate list, but estimates may be used in the meantime. To aid in negotiations, the parties may obtain drive-by valuations from real estate agents in relation to their family home or other investment property and use Red Book car valuations from www.redbook.com.au, but for the purposes of a court hearing, unless agreed, they will probably need to obtain direct expert evidence.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.