Property Settlements

The “Future Needs” Argument in a Property Settlement: What Is It?

Adelaide family and divorce lawyer Dina Paspaliaris writes about how the “future needs” of a separating couple are determined.

Adelaide family and divorce lawyer Dina Paspaliaris writes about how the “future needs” of a separating couple are determined.

When the Court is determining a “just and equitable” division of assets between parties, it is required to consider the “future needs” of the parties under Section 75(2) of the Family Law Act.

Section 75(2) of the Act sets out a number of factors that the Court needs to consider when deciding on whether one of the parties has greater needs than the other, in the future.

The factors include :

1. The age and state of health of each of the parties;

2. The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

3. Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

4. Commitments of each of the parties that are necessary to enable the party to support:

a.Himself or herself; and

b.A child or another person that the party has a duty to maintain.

5. The responsibilities of either party to support any other person;

6. The eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth; and

7. Where the parties have separated or divorced a standard of living that is in all the circumstances is reasonable.

For example if a husband and wife have three children all under the age of eight years and as a result of the separation the children will predominantly live with their mother, the mother will be the primary homemaker and therefore the Court will need to consider this factor as a future need of the mother.

Another example is, if a party is employed and has an income considerably higher than that of the other party, then this is a consideration that the Court takes into account.  The Court recognises that the greatest asset that party can take from a relationship is their income.

Finally, the Court has a wide discretion when determining the future needs in cases, and therefore obtaining legal advice for your property settlement is vital, in understanding what your future needs arguments could be in order to achieve a just and equitable outcome.

TGB is South Australia’s largest family law firm. For advice about your separation or property settlement issue, contact your nearest TGB location