Sisters in Law: How much money can I get in a divorce?

A WA woman is planning on leaving her FIFO husband because he’s never around – but is scared of being left “high and dry” financially.

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 advise about your rights when it comes to divorce.

Question:

My husband is a FIFO worker in a mine which means he spends 14 days away working followed by 14 days off at home. This arrangement has seen our marriage crumble as he’s not home enough for us to sustain our relationship.

He also isn’t of much help with our three kids or the home because it’s almost impossible to establish a routine.

Because of his job, I haven’t been able to work for 10 years and I’m worried that if I divorce him I’ll be left with no money. I have less than $20,000 in my superannuation and have no savings.

I’d like to get a job but it’s hard with my husband being away so much. We own a home together and he’s got a lot of superannuation. How do I make sure I’m not left high and dry if I leave him? – Anon, WA

The woman wants to leave her husband but is worried she will have no money. Picture: iStock

Answer:

We’re sorry to hear you’re having a difficult time in your relationship.

You haven’t mentioned whether you have a binding financial agreement (also known as a ‘prenup’), that was entered into prior to your relationship commencing.

Prenups are relatively rare and sometimes aren’t binding because they haven’t been drafted properly. We’ll work on the basis you don’t have one.

Once a couple has separated, it is necessary to have a property settlement. This involves dividing assets and any debts. It’s a final resolution so that each person can retain any assets they received in the settlement and move forward with their lives.

Divorce means dividing assets and debts. Picture: iStock

There is no set formula for this, but in general the process will consider:

1. The assets and debts of you and your husband individually and jointly, and what they are worth

2. Direct financial contributions by each party, such as property you each had when you began to live together and your wages while living together

3. Indirect financial contributions by each party such as gifts and inheritances

4. Non-financial contributions to property, such as home renovations and management of investments

5. Contributions to the welfare of the family, such as caring for children and doing the housework

Both of your superannuation balances will be an asset and, depending on the agreement or court order, he may be required to transfer some of his balance to you.

Other circumstances to be considered include you and your husband’s age, state of health, current and future earning capacity, the length of your relationship, and the age of any children.

Finally, the law has to consider what is fair and equitable taking into account the financial circumstances and all other factors.

A number of financial factors will be taken into account. Picture: Supplied

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

As you haven’t worked for 10 years, it might take you time to find employment and you are otherwise unable to adequate support yourself.

Given this, part of the financial settlement agreement (or order from the court) may include financial support for you known as ‘spousal maintenance’.

Your husband may also have to provide financial support for your children (known as child support or child maintenance). This is generally dealt with through Services Australia (Child Support Agency) rather than as part of the financial agreement or court order.

The Child Support Agency uses a mathematical formula to work out how much child support should be paid based on your respective incomes and the number of days that the children are in each of your care.

Your husband may also have to provide financial support for your children. Picture: iStock

If you and your husband can reach an agreement – without any court involvement – on how your property should be divided and whether spousal maintenance should be paid, it will be a much cheaper and often quicker process.

If you are able to reach an agreement then this should be formalised by applying for consent orders in the Family Court.

If you cannot reach an agreement, then you can apply to the Court for orders about the division of property and any payment of spousal maintenance. You can’t make this application until you have tried to resolve it out of court.

You must try to resolve issues out of court first. Picture: iStock

As you were married, any application to the Court for a property adjustment must be made within 12 months of your divorce becoming final.

But you can make the application at any time after your separation (and do not have to wait for your divorce to finalise).

You should obtain specific legal advice and provide your lawyer with all of the relevant information and documents.

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 [e-mail]

Get more from Alison and Jillian on their Facebook page