While the name in which assets are held is a relevant factor, it is not the sole determining factor in property division. The Family Law Act 1975 (Cth) in Australia takes a broad and holistic approach to property division, focusing on the overall asset pool and the principles of contributions, future needs, and justice and equity.

The court assesses the financial and non-financial contributions made by each party during the relationship. Contributions can include income, assets brought into the relationship, domestic duties, child-rearing responsibilities, and financial support.

The future needs of each party are considered, including factors such as age, health, income-earning capacity, parental responsibilities, and financial resources. The court aims to ensure a fair outcome that addresses the future financial stability and needs of each party.

The court’s key objective is to achieve a just and equitable division of assets. While the starting point is often an equal division this is not always the case.  The court has the discretion to deviate from a 50/50 split based on the unique circumstances of the case.

While ownership and legal title are factors considered in property division, they are not determinative. The court may examine the following aspects:

1. Solely Owned Assets: Assets held solely in one party’s name may be taken into account as part of the overall asset pool. The court assesses the value of these assets and considers the contributions and future needs of both parties.
2. Jointly Owned Assets: Assets held jointly by the parties are generally subject to division. The court may consider the proportion of each party’s contribution to the acquisition or maintenance of these assets.
3. Assets in Trusts or Companies: Assets held in trusts or companies may still be included in the property division if they are deemed to be available for distribution or if they can be attributed to one party’s resources or contributions.
4. “Third Party” Interests: Assets held in the name of a third party, such as family members or friends, may be subject to scrutiny if the court believes they are a sham or mere facade intended to frustrate the division of property.

Due to the complexity of property division, it is crucial to seek legal advice from a lawyer experienced in family law matters. A lawyer can provide guidance tailored to your specific circumstances, consider all relevant factors, and advocate for your interests during the property division process.