What are “Future Needs”? The Big ‘3rd’ Topic in Family Law Property Cases

by CLW Family Lawyers | Last Updated: Jan 15, 2020 | Divorce & Separation

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Most parties to a family law property dispute often have concerns about restoring their wealth after a long-term relationship, particularly if they are the primary carer for children or they have been out of the workforce for an extended period of time.

The Court takes up these concerns in determining a ‘just and equitable’ division of assets between parties when it considers the “future needs” of each party.

Section 75(2) of the Family Law Act mandates a number of factors that the Court needs to consider when deciding on whether each party has any particular ‘need’ moving into the future. These 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 gainful employment;
  3. Whether either party has the care or control of a child (under 18 years) to the relationship;
  4. Commitments of each of the parties that are necessary to enable the party to support themselves, a child or any other person that party has a duty to maintain (for example, a disabled or elderly family member).
  5. The eligibility of each party for a pension, allowance or government benefit; and
  6. Whether the party is able to maintain a reasonable standard of living.

How will ‘future needs’ be assessed?

Two examples:

  1. An example of how the Court takes into account future needs is the case of a Mother and Father with three young children. During the relationship, the Father worked full-time and the Mother was unemployed in order to care for the children. As a result of separation, the parties have agreed that the children will predominantly live with the Mother.

    The Mother will therefore be responsible for the day to day care of the children and be responsible for meeting most of the associated  expenses of day to day living for the kids. The Court will consider this as a future need of the mother and ensure that the amount she  receives from the pool of assets is sufficient to enable her to meet this need.

  2. Another example is where the Wife is 40 years of age and a merchant banker on a high income and the Husband is 60 years of age and a manual labourer on a low income. The Husband will retire much sooner than the Wife and his capacity to fund his future is therefore significantly lower. Accordingly, the Husband is likely to receive an adjustment in his favour to account for the fact that his income earning capacity is substantially lower than his Wife.

These are just a few examples. The Court has a wide discretion when determining the future needs of parties. Each matter is highly fact-dependant. We recommend you obtain specific legal advice for your property settlement so that you can understand what future needs arguments could be made for you or against you in order to achieve a just and equitable outcome.

 

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