What Are Future Needs Factors?

Future needs factors are the personal, financial and family-related circumstances the court takes into account when determining how assets should be divided and whether spousal maintenance is necessary.

These factors are set out under section 75(2) of the Family Law Act 1975 (Cth) for married couples and section 90SF(3) for defacto relationships. They are designed to assess the relative disadvantages one party may face following separation and help ensure a fair adjustment in the division of assets and responsibilities.

Key Future Needs Considerations

Here are some of the major elements the court will take into account:

1. Age and Health

The age and health of each party are crucial. An older person or someone with chronic health issues may face greater difficulty finding work or may require ongoing medical care, which affects their financial stability.

Referenced under section 75(2)(a) Family Law Act 1975 - V….

2. Income, Property, and Financial Resources

The court looks at each party’s income, property holdings, superannuation entitlements, and financial resources. This includes any capacity to earn income and whether one party is financially reliant on the other.

See section 75(2)(b) Family Law Act 1975 - V….

3. Earning Capacity

Beyond current income, the court also considers the ability of each party to earn a living in the future. This includes physical and mental capacity to undertake appropriate employment and may factor in qualifications, experience, and time out of the workforce.

4. Care of Children

If one party has primary care of children under 18, this will significantly influence property and maintenance outcomes. Being a primary carer often limits a person’s ability to work full-time or pursue career advancement.

See section 75(2)(c)Family Law Act 1975 - V….

5. Financial Commitments and Obligations

Each party’s commitments to support themselves or others (such as dependents or new families) will be weighed.

See section 75(2)(d) and (e) Family Law Act 1975 - V….

6. Government Benefits and Superannuation

Eligibility for a pension, Centrelink payment, or superannuation payoutis also relevant. The court considers how much financial assistance each partycan expect to receive and when.

See section 75(2)(f)Family Law Act 1975 - V….

7. Standard of Living

Where possible, the court seeks to ensure both parties can maintain a reasonable standard of living after separation. While replicating the lifestyle enjoyed during the relationship isn’t always possible, the outcome should not leave one party significantly disadvantaged.

See section 75(2)(g) Family Law Act 1975 - V….

8. Effect of Orders on Earning Capacity

If a property or maintenance order affects one party’s ability to earn - for example, by forcing them to sell a business or relocate - this is taken into account.

9. Any Other Relevant Factors

The court has broad discretion to consider any “fact or circumstance” it believes relevant to ensure fairness, including the impact of domestic violence, financial misconduct, or the terms of any binding financial agreement.

See section 75(2)(o)–(q) Family Law Act 1975 - V….

How Future Needs Affect Property Settlements

When deciding how to divide property, the court follows a four-step process:

1.      Identify and value the property pool – This includes all assets, liabilities, and superannuation.

2.      Assess contributions – Both financial (e.g.income, inheritances) and non-financial (e.g. homemaking, childrearing) contributions are considered.

3.      Assess future needs – Here is where section 75(2) factors come into play. This stage may result in a percentage adjustment in favour of the party with greater future needs.

4.      Ensure the outcome is just and equitable – The final check ensures the result is fair to both parties in all the circumstances.

Future Needs in Spousal Maintenance

A party to a marriage or de facto relationship may be entitled to spousal maintenance if they cannot adequately support themselves and the other party has the capacity to provide assistance. The same future needs factors are relevant in determining whether maintenance should be ordered and, if so, how much and for how long.

This is guided by sections 72 and 74 of the Family Law Act Family Law Act 1975 -V….