Division of matrimonial property in Australia
You are in an archived section of the AIFS website
The way property is divided on divorce is a key issue for many families, and one that has attracted considerable debate over the past two decades. Yet despite the importance of property division to parties negotiating the divorce transition it has been more than a decade since broad-based empirical research on this issue has been conducted in Australia (i.e., Settling Up, McDonald, 1986a). To address this gap in the research, data from the Australian Divorce Transitions Project are analysed to provide an insight into the way in which women and men are dividing their property when they divorce.
The Australian Divorce Transitions Project is a random national telephone survey of 650 divorced Australians conducted in late 1997 by the Australian Institute of Family Studies. The survey includes information on private settlements as well as those settlements that were judicially determined. Drawing on these data a number of specific issues are explored including the nature and value of the assets on separation of women and men. The share of property women and men receive at settlement is also examined, and the extent to which the various contributions and needs specified by the Family Law Act contribute to the share of property received is tested. The final issue examined concerns the extent to which women and men would be worse (or better) off under a system of property division that results in equal shares being allocated to the husband and wife.
In essence, the data suggest that little has changed since the publication of Settling Up in the way matrimonial property is divided. The way women and men divide their property on divorce primarily reflects financial contributions to the marriage, and concern for the future welfare of the children. To this end the principles that govern the division of property in Australia are consistent with the law. The future financial needs of the former spouse may, however, have been overlooked by parties when allocating property on divorce — a shortfall that, in part, reflects the constraints imposed by the limited wealth available to a large minority of couples on separation.
First and foremost, we would like to thank the hundreds of respondents who volunteered much personal information about themselves, their property, and their post-divorce circumstances. Most respondents did so in the hope that this information would make a difference to the lives of others.
We would also like to acknowledge the late Dr Kathleen Funder, who was responsible for the conceptualisation and development of the Australian Divorce Transitions Project, on which this study is based.
We are indebted to Patrick Parkinson and Ruth Weston for their comments on drafts of this paper. Several Institute colleagues also provided useful criticism and encouragement, particularly Belinda Fehlberg and David Stanton, and we are also grateful to Bruce Smyth for his contribution to the methods section. We, of course, take full responsibility for any shortcomings in the paper.
Sheehan, G., & Hughes, J. (2001). Division of matrimonial property in Australia (Research Paper No. 25). Melbourne: Australian Institute of Family Studies.
0 642 39487 3