A Divorce Wish List.. Are You Kidding?

It was recently reported (available here) that a Melbourne millionaire has demanded a $10 million payment from her husband as part of a $120 million divorce battle, as a down payment for her to purchase a ‘suitable’ new home for both her and her children.

The couple – given court pseudonyms to protect their identity - are reported to have commenced divorce proceedings after a 17-year marriage. They are both understood to have substantial holdings to the sum of approximately $100 million combined. ‘Ms Sully’ and her demand for payment of the $10 million was met with reluctance by her estranged husband who claimed that he had no access to funds with which to meet the payment, if the court accepted that it was merited. The court was concerned about the degree of instability in the living arrangements for ‘Mr and Ms Sully’s children – the eldest son refused to live with his mother after she had decided to separate with his father – and opined that ‘Ms Sully’, who had a one year lease on a property with which to live with her children, had created a home that could keep the children in the conditions that they had become accustomed to. Accordingly, the court deemed it appropriate to grant an order for payment of $10 million to ‘Ms Sully’ by way of an interim property settlement.

The idea of a ‘wish list’ or making demands of one’s partner in the context of divorce proceedings can strike people as being slightly odd. The difficulty is that the law governing divorce is not always well understood, and can take people by surprise when they are going through the process of attempting to bring their relationship with their spouse to an end. In this blog post, we highlight how the law on divorce works in practical terms.

Getting divorced and its meaning

The idea of a divorce is fairly clear: a couple is bringing their legal relationship with one another to an end. There is only really one key basis for a divorce that can allow for a relationship to be dissolved: the irretrievable breakdown of the relationship. It is difficult to explain what this means in practice, other than to highlight that it will be evidenced by a prolonged period of isolation from your spouse i.e. a continuous period of 12 months of separation from one another.

Separating shared property

The principle of a divorce is easy enough to understand. However, it is the practicalities that are involved that can often result in a great deal of dispute amongst a couple. One of the key aspects of any divorce is that the property that a couple has shared- until the time when they decide to divorce one another – will need to be divided up amongst them. Problems arise either because there is ill-feeling between the parties and one doesn’t want the other to have a particular right to some piece of property, or there is confusion as to where legal title actually lies.

In the ordinary course it is far preferable for you and your spouse to come to as much agreement as possible in terms of how you divide property that you previously shared together. This is particularly important if your relationship has resulted in children: the courts will need to know that you have come to an arrangement that caters for their needs, and this will influence how receptive it is to any requests for parenting orders by your or your spouse.

In the event that you and your spouse are not able to agree on the division of your property (sometimes described in law as ‘assets’), then the court is able to make the decision for you. It does not follow that you or your spouse will receive an ‘equal’ division of assets, as this is not the approach taken by the courts. Rather, the courts will look to arrange for a division of assets that is ‘fair and equitable’ in the circumstances. This will involve the following:

• Consideration of all of the assets enjoyed by both parties and their value;
• Consideration of the contribution made to the relationship by both parties (both financial and non-financial); and
• Extrapolating from the circumstances and potential of both you and your spouse in terms of future needs and ability e.g. earning capacity, age, state of health etc.

It is based on all of this information that the courts may come to their conclusion on the division of property. It is important to point out that as a matter of practice, the courts have never been entirely comfortable with making such decisions – they believe themselves to be ill-suited to making such highly personal decisions. That being said, if they are approached and asked to do so on the basis that you and your spouse are unable to make such a decision, the courts judgment will be final and will attempt to realise and outcome that is appropriate in the circumstances and protects the interests of any children involved.

Who can help in divorce or family law proceedings?

Divorce can be a bitter experience for many people. The process of separating from someone that you have spent a significant amount of time with may not always be pleasant, and you should be assisted by a sympathetic but professional adviser who understands the delicacies of your situation.

At Szabo & Associates, Solicitors we are routinely involved in divorce proceedings on behalf of our clients, and are adept at navigating the complex procedural rules that can often be encountered in court proceedings. We will handle every aspect of your matter, from inception to conclusion and ensure that you are appropriately advised of your position throughout.

Contact Szabo & Associates, Solicitors

If you need advice from a team of lawyers on how to pursue a divorce as quickly and painlessly as possible, contact our Associate Family Lawyer on 9281 5088 today.