Dividing assets on separation: home and away

In the article of ‘Dividing assets on separation: home and away”, International Family Law Specialist Carmel Brown gives detailed answers to the questions related to the financial issues dealt in UK and in Australia when couples facing separation.

As increasing numbers of families live and work abroad, this issue has become prominent in the legal cases.

Different countries deal with dividing assets on separation differently. For example, in countries that operate a system known as community of property, the assets accruing during the marriage up until the date of separation are divided equally. These countries will not take into account pre-marital and post-separation assets and all inheritances and gifts. This system can sometimes lead to unfair outcomes as it gives no accounts to commitment made within a marriage which are often to one spouse’s prejudice (e.g. giving up a career for child raising or moving countries to be with the other spouse). Spousal maintenance may not be granted after a few years after the divorce in an increasing number of countries.

Carmel also answers specific questions regarding England legal system, for example  “if a couple are Australian citizens, can England apply Australian Law in relation to divorce matter?”

The answer is no, as England only applies English law. Although some countries apply both their domestic law and the law of the country with which the couple have the closest connection.

Other questions include “How will the English Family Court know what are the assets to be divided?” “How does the way England deals with ascertaining what assets are to be divided compare to other countries?” are answered by Carmel.

In answering “do England and Australia differ in the way they deal with cohabitation and what are the rights in both countries”, Carmel mentioned that in England, an unmarried couple have no legal rights if they are separate regardless of whether they are cohabitating and have shared assets. However in Australia, if couples satisfy the courts that they are in a de fecto relationship upon the relationship breakdown, the property division will be dealt with in the same way as if they were married. “Generally speaking, in Australia, marriages, civil unions and cohabiting couples will be treated the same for the purposes of property division, maintenance and inheritance.”