An age old question in family law, what is fair? An answer to that will change based on the particular facts of the case.

Broadly speaking, the court takes a 4 step approach to determining what a fair settlement is.

Before it begins that approach, it must be satisfied that it is just and equitable for there to be a division of property at all. There are some matters where it wont be approach to divide property, two examples are where the relationship was very short, or perhaps where the relationship was longer but each party has their own assets and there is no justification to divide those assets.

The four steps in summary, are:

1. To identify the legal and equitable entitlements each party has to property, and ascertaining the value of the property they each own;

2. Assessing the contributions each of the parties made to the property, including financial, non financial, and parenting, that occurred before, during and after the relationship;

3. Determining whether there should be an adjustment to the contributions assessment due to a parties future needs, perhaps due to a disparity of income, the care of children, one parties’ poor health, or family violence that has occurred; and

4. Making an order that is in all of the circumstances, just and equitable. I.e. by clearly making orders for say, the sale of a property and dividing the proceeds, or for a superannuation fund to be clearly split, for example.

The above factors will be applied very differently based on the particular facts of a case. For example, where there is a relationship of 15 years with 2 young kids and an income disparity where one parent cares for the children and the other earns $200,000, that is likely to be an alteration of property of more than 60% to the parent caring for the children.

Alternatively, if the relationship occurred over 30 years and the children are grown and both parents working on similar incomes, that might suggest that all of the factors lead to a 50%/50% division.

There is no one size fits all, the factors described above need to be weighed against the facts of each case.