Future Needs in Family Law: Section 75(2) Factors
Financial resources in family law, earning capacity and care of children shape the future needs adjustment. See each factor and the evidence it needs.
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Future needs in family law can change the division of property to account for each party’s circumstances after separation. A primary carer’s limited earning capacity, housing needs and access to financial support can justify an adjustment after contributions are assessed. The amount depends on the evidence and the property available for division.
For married parties, the property factors now sit in section 79(5) of the Family Law Act 1975. Section 75(2) remains the list for spousal maintenance. Bank statements help you establish the income, expenses and financial resources behind those arguments.
What the Future Needs Adjustment Does
A future needs adjustment changes the property outcome where the parties’ current and future circumstances justify it. The court considers those circumstances alongside contributions and must reach a just and equitable result. A contribution assessment of 50:50 does not determine the final division.
The Family Law Amendment Act 2024 replaced the property provision’s cross-reference to section 75(2) with a separate list in section 79(5). That list includes express consideration of family violence, material wastage and liabilities. It also expressly includes appropriate housing for children under 18.
The statutory language is “considerations relating to current and future circumstances”. The Attorney-General’s explanation of the property reforms describes the revised framework and its application to existing proceedings. Where proceedings span the change, the transitional rules determine which provisions apply.
An adjustment reallocates property. A claim for ongoing support raises the separate question of spousal maintenance. Similar evidence can support both claims, but the orders serve different purposes.
Percentages Need a Reasoned Financial Effect
A percentage needs to be understood in dollars and in the resulting circumstances of both parties. In a hypothetical $1 million net pool, moving from 50:50 to 60:40 reallocates $100,000 to one party. The resulting entitlements differ by $200,000. That calculation explains the effect of the proposal, without predicting the court’s assessment.
In Pantoja & Pantoja [2025] FedCFamC1A 104, the trial orders divided non-superannuation property 59:41 in the wife’s favour and equalised superannuation. The Full Court allowed the appeal and remitted the matter for rehearing. The reasons did not adequately explain whether the division arose from contributions, section 75(2) factors or both.
The Full Court also required an explanation of the anticipated future effect where family violence supported a future needs argument. An effect on earning capacity was one example. Pantoja concerns the earlier provisions and supplies no approved percentage tariff for the revised Act.
The Factors Courts Consider
Section 79(5) requires the court to consider the listed circumstances so far as they are relevant. The court weighs the circumstances together. It does not award a fixed number of percentage points for each child, medical condition or income difference.
The following plain-language list follows the Family Law Act’s property and maintenance provisions. The paragraph references let you distinguish a property argument under section 79(5) from the corresponding maintenance argument under section 75(2).
| Circumstance | Property: section 79(5) | Maintenance: section 75(2) |
|---|---|---|
| Effect of family violence | (a): effect on the other party’s current and future circumstances | (aa): effect on the other party, including the other listed matters |
| Age and health | (b): each party’s age and health | (a): each party’s age and health |
| Income, property and financial resources | (c): each party’s position and physical or mental capacity for appropriate employment | (b): the same subjects |
| Material wastage | (d): effect of intentional or reckless material wastage of property or financial resources | No separate express wastage paragraph |
| Liabilities | (e): debts, their nature and the circumstances in which they arose | No separate express liabilities paragraph |
| Care and housing of children | (f): care of a child under 18 and the need for appropriate housing | (c): the same subjects |
| Necessary support commitments | (g): supporting oneself and a child or other person one has a duty to maintain | (d): the same subjects |
| Other support responsibilities | (h): responsibilities to support another person | (e): the same subject |
| Pension, allowance or benefit eligibility | (i): Australian or overseas statutory entitlements and superannuation schemes | (f): corresponding eligibility, subject to section 75(3) |
| Payments from those entitlements | (j): the rate being paid | (f): the rate being paid |
| Reasonable standard of living | (k): what is reasonable after separation or divorce | (g): the same subject |
| Obtaining an adequate income | (l): whether a property adjustment enables education, a business or adequate income | (h): whether maintenance increases earning capacity through education, training, a business or adequate income |
| Creditors | (m): effect of a proposed order on recovery of a creditor’s debt | (ha): the same subject |
| Contribution to the other party’s financial position | (n): each party’s contribution to the other’s income, earning capacity, property and resources | (j): the maintenance claimant’s contribution to the other party’s position |
| Marriage duration and earning capacity | (o): duration and its effect on each party’s earning capacity | (k): duration and its effect on the maintenance claimant’s earning capacity |
| Continuing a parental role | (p): protecting a party who wishes to continue that role | (l): the same subject |
| Cohabitation with another person | (q): financial circumstances of the cohabitation | (m): the same subject |
| Property orders between the spouses | Assessed through the property jurisdiction itself | (n): terms of orders made or proposed under section 79, including relevant bankruptcy property |
| Orders or declarations under Part VIIIAB | (r): relevant de facto orders or declarations, including property and vested bankruptcy property | (naa): corresponding orders or declarations |
| Child support | (s): future payments or possible future liability | (na): payments already provided as well as future payments or liability |
| Binding financial agreement between the spouses | (t): its terms | (p): its terms |
| Binding Part VIIIAB financial agreement | (u): its terms where binding on a party | (q): the same subject |
| Other circumstances required by justice | (v): any other fact or circumstance the justice of the case requires | (r): the corresponding catch-all |
Section 75 remains the maintenance provision. Under subsection (1), the court exercising its section 74 maintenance jurisdiction must consider the subsection (2) matters. Subsection (3) requires it to disregard the maintenance claimant’s entitlement to an income-tested pension, allowance or benefit.
For a primary carer, connect the care arrangement to its financial effects. Explain the hours available for paid work and the cost of childcare. Set out housing requirements alongside actual earnings and supported prospects of returning to work.
Bank records can show treatment spending or reduced income after violence. Medical and employment evidence can establish the health and capacity effects that transactions alone do not explain. Keep that future effect distinct from the historical contribution argument. The related guide to financial abuse in family law addresses the conduct and its financial consequences.
Financial Resources Beyond the Pool
A financial resource is a source of financial benefit available to a party, even where the party does not own an asset available for division. Its practical availability affects the party’s financial circumstances. Regular trust distributions and financial support within a new cohabiting relationship can change the need for an adjustment.
A trust interest can be property or a financial resource, depending on the interest and the party’s rights or control. Start with the deed and the actual distribution history. The family trust and divorce guide explains that classification in more detail.
An expected entitlement requires evidence about how likely it is to become available. Identify any conditions and the probable amount. A hope of receiving money is weaker evidence than an established pattern of payments or a documented entitlement.
Statements help you demonstrate the practical position. Repeated credits from a trustee can establish a payment history. A new partner’s regular payments toward rent or household bills can show the support available through cohabitation. Bills paid directly by the partner might need that partner’s records or other evidence, because they will not appear as credits to your client’s account.
For each alleged resource, identify the payer, payment frequency and use of the funds. Explain whether the payments continue and what evidence supports that expectation. Treat the other person’s assets and the support actually available to your client as separate questions.
Evidencing Income and Expenses
Bank statements establish actual receipts and outgoings so you can test the income and expenses claimed in a Financial Statement. Use a period long enough to show variable earnings and irregular costs. Compare the same period across every supplied account, with annual expenses converted to the Financial Statement’s reporting basis.
Separate wages and genuine income from transfers between a party’s own accounts. A deposit can also be a loan, refund or sale proceeds. Match the description and counterparty with payslips, invoices or the relevant agreement before relying on its character.
For expenses, identify who pays each bill and whether the payment continues after separation. Distinguish personal spending from business costs and reimbursements. Include evidenced childcare and housing costs where they explain the primary carer’s position.
In a hypothetical example, a client declares $700 weekly housing costs, while statements show a new partner paying $300 toward the rent each week. Establish whether the support is ongoing and whether the client pays the remaining $400. The court needs the actual arrangement to assess the financial circumstances of cohabitation.
FinTrace saves hours of statement conversion and review by consolidating the supplied accounts into a searchable Excel ledger and a clear findings report. Its source references put the supporting PDF filename and page beside each finding. You can identify recurring receipts, compare household spending and examine possible undisclosed income without working through each statement separately.
For the adjustment submission, explain each disputed Financial Statement figure alongside the evidenced amount. Identify the source transactions and any continuing support. Then connect those facts to the client’s earning capacity, care responsibilities and housing needs, with the proposed division expressed in both percentages and dollars.
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