The Law and You: Dividing specialty items during divorce

Posted on 10 April, 2018

In general, Australians are marrying at a later age, living together before marriage and divorcing less compared to 20 years ago (ABS).

Australia’s marriage rate is expected to dramatically increase with same-sex couples saying ‘I do’.

Intermingling property during your marriage or de facto relationship is common, but what happens to heirlooms and other special personal belongings during a divorce?

Dividing up assets is almost never easy. It can be a tumultuous emotional ride. Here is some important information on this topic.

Does the Court only consider expensive items?

No. The Courts will deal with property of any value, but it encourages parties to try to agree on a division of them between themselves, as this is more cost-effective. Surprisingly, the most upsetting and difficult negotiations can take place when dividing sentimental items of low monetary value.

What does the Court consider to be items of special value?

Specialty items range in type. They can be of sentimental value, like family photos. They can be inherited items, like artwork. They can be items important to one party such as tools of trade.

In a family law settlement, special heirlooms and items of sentimental value—including wedding and engagement rings—are treated by the Family Court like any other asset. All property must be valued, either by agreement between yourself and your partner or by a qualified valuer. There is no special law or presumption that one item should be allocated to one party over the other. It depends on the facts of each case including how the items came into your possession and who contributed towards their purchase. The Judge will make a decision based on the most just and equitable outcome and will often look for a pragmatic solution.

What if I’m determined to keep a special item?

It’s always best to avoid a bitter dispute. Sometimes it’s relatively easy to find a pragmatic solution to a problem, for example, photos can be duplicated with modern technology. Sometimes it’s best to let the item go, rather than suffer years of emotional stress.

What’s the best approach?

Try to reach agreement with your partner on dividing items before you separate or end up in Court. Start by listing items that are special to you and that you want to keep and ask your partner to do the same. These lists can later be compared and used during negotiations.

Although it can be difficult and tedious, it’s better to divide personal items sooner rather than later. The more time that passes, the more difficult it becomes. Other complicating factors can arise. For example, items can become lost, broken or sold.

Can I take what I want and discuss this with my partner later?

It’s not a good idea to remove items without speaking to your partner first and trying to reach an agreement. This can cause friction and impede overall settlement negotiations.

What do I do if I can’t work things out with my partner?

Attending mediation with a qualified mediator can help. Professional mediation can help you to work through this painful process and move on with your life. If that fails, you may have to go to Court where a Judge will make a decision on your behalf.

What is the Court likely to do?

It depends on the item. If tools of trade are needed by one party to earn an income, then the Court will likely leave the tools with that party. With inherited items, the Court will consider the circumstances of each case including which party inherited them.

Should I just leave it to the Court?

The Court prefers not to decide on the division of special items because the cost of doing so usually outweighs the cost of the items. Also, the Court expects you to try to work these types of issues out first between yourself.

This column was prepared by Debra Parker, an Accredited Specialist in Family Law with Watts McCray Lawyers Canberra.

Debra Parker

If you have any questions about dividing specialty items in a divorce, call Watts McCray to speak to one of our experienced family law lawyers.

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