Nila Sweeney


Divorce is troubling enough but add money to the situation and it can become vicious – just ask Demi Moore and Ashton Kutcher.


Combined, the Hollywood couple is worth $290 million. Although they signed a pre-nuptial agreement before their 2005 wedding, Demi is reportedly destined to ensure her former hubby is left with little financially.


What should you do?


If you can, the Australian government strongly recommends you and your former partner reach an agreement on how property and finances should be divided, without bringing in a legal team. This is less time-consuming, avoids costly legal fees and it could even reduce the bitterness between you and your former partner.


If you manage to achieve consensus on how your assets will be split, you can make the agreement legally enforceable through either a pre-nup or consent order.



Pre-nups (technically known as ‘financial agreements’) can cover a range of financial issues. For it to be legally enforceable, it must be signed by both of you and you need to show you’ve received proper legal and financial advice. Contrary to popular belief, a pre-nup isn’t only developed before a marriage begins; it can still be written after a relationship or marriage breaks down.


Alternatively, a consent order can be drafted and signed by both individuals. A consent order outlines how property, super earnings and other financial matters will be split. The consent order is then submitted to the Family Court or Federal Magistrates’ Court. If the application is successful, the court then legally enforces the consent order.


What if you both agree to disagree?


First and foremost, you need to show that you’ve both tried to resolve the issue yourselves. Before anything be enforced, th

e court will run a pre-action procedure where it will examine which specific issues are negotiable and those that require a court’s ruling.


You can then apply to the court to receive a financial order for any asset-related issue, stating how you’d like to divide up various assets and debts between you and former partner. The court reviews your application and decides whether it can be legally enforceable.


How does the cou

rt r

each a decision?


Regardless of which option you take, the Family or Federal Magistrate’s Court will go through a similar process before implementing any outcome. In relation to both individuals, the court will assess:


·         Your earned and unearned income, and how it’s contributed to the marriage or relationship


·         The value of your assets and debts



·         Non-financial contributions to the marriage, such as caring for children


·         Long-term issues, such as age, ability to earn an income and raise children


What about superannuation?


If relations aren’t at boiling point, you and your former partner can collectively decide how to split superannuation through a formal written agreement, with evidence that you’ve received legal advice. On the upside, neither of you need to go to court once an agreement has been reached.


As with other financial and property matters, you can apply for a consent or court order if that’s more appropriate.


Superannuation needs to be valued in order to be split. Unfortunately, the legislation that specifies how this is to be done is quite messy. Legal help is a requirement for any successful super-splitting. Furthermore, you’re legally obliged to keep your super fund trustee in the loop at all stages of this process.


--Stephanie Hanna


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