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Brisbane Family Law

When Harry met Sally | Part Two | Settlement of Property

This week we continue our weekly series concerning the dilemmas faced by each of Sally and Harry after the breakdown of their relationship. We consider issues facing Harry and his viewpoint in relation to the final settlement of property that Sally is wanting to arrange with him.

Harry does not agree with Sally

Settlement of Property

Settlement of Property

This may not surprise you in itself. However, Harry’s first and foremost issue is not how property should be divided. As far as Harry is concerned, he does not accept that he and Sally are even officially separated.

Harry doesn’t dispute that they are now living in separate places. Harry had moved out to live with his parents but he believes that this was only a temporary measure whilst he and Sally sorted out their differences.

However, since he moved out, tensions between them had reduced and Harry had continued visiting Sally and the children at the house where she still lived with the children, evening staying for dinner with them and sometimes staying overnight. In fact, there had been a period of a few weeks about two months ago when he had stayed with them for a continuous period of a few weeks.

There had been a few occasions when they had talked about Harry moving back in and acknowledged to each other that they still had feelings for each other. They had not been sexually involved for a long time but Harry and Sally had slept together on a number of occasions since he moved out when he had stayed overnight with Sally and the children.

Harry had continued to financially support both Sally and the children, paying the mortgage and rates at the house where they lived as well as paying for groceries, health insurance for them all and other living expenses not only of the children but also for Sally.

Although their family and friends knew that he did not live full time at the house, Harry and Sally continued to socialise together with the children amongst family and friends.

What can harry do where he does not want to finally resolve property matters with Sally?

Unfortunately for Harry, if Sally is of the view that their relationship has broken down irretrievably and has conveyed that to Harry, she will be entitled to pursue a property settlement.

However, the question of whether or not they are considered to be separated at law will be important in determining when it is that either or both of them can apply for a divorce.

We would recommend to Harry that he has an initial consultation with a family lawyer experienced in family law, including property settlement matters so that he can obtain some preliminary advice about how his entitlement for settlement of property is worked out and what he could expect in a property settlement with Sally as well as obtaining advice about when and under what circumstances Sally may apply for a divorce if she wishes to do so.

At LGM Family Law, we offer a free phone consultation for up to 15 minutes. However you should be aware that we cannot act for both parties to a relationship or former relationship so that if Sally has already sought advice from us, we cannot also provide advice to Harry.

If you would like to learn more about settlement of property following a separation, click here.

However, since our Sally and Harry are only fictional characters, each week during this series, we will develop on Sally and Harry’s situation and discuss issues effecting each of them.

 

 

Dividing superannuation

Can I obtain part of my former partner’s superannuation in a family law property settlement?

The family courts have power to divide payments made or to be made from a superannuation interest, between parties to a former relationship (called a “splitting order”) or to make an order which in effect restrains a trustee of a superannuation fund from paying out a party’s interest in superannuation or which precludes that party receiving his or her interest, pending further order of the Court (known as a “flagging order”).

Dividing superannuation

Dividing superannuation

The court cannot make orders of that kind though if the superannuation interest is “not splittable” or “not flaggable”. Payments that are not splittable payments include certain payments made on compassionate grounds (for example to treat a life threatening illness or a payment made to a member because of severe financial hardship).  An unflaggable payment will often be a pension.

In the past, superannuation was treated as a financial resource of the parties to a former relationship and not an asset as such. This was because the superannuation interest did not actually become a real asset until the interest vested on the retirement of the person entitled to the superannuation.  However, this could cause difficulties for a party in a family law property settlement, particularly where the superannuation formed a significant part of the asset pool that was available to be divided between the parties.

Today, however, the court has power to deal with a superannuation interest as though it is “property”.

Whether you and your former partner are involved in court proceedings or wishing to obtain consent orders (without actually going to court), in an appropriate case, an order may be obtained which effectively gives one party an interest in the other party’s superannuation.

Orders providing for a payment split of superannuation in favour of one party to a former relationship can be binding on the trustee of the superannuation fund so long as the trustee has been afforded what is known as “procedural fairness”. This involves ensuring that certain items are addressed, including ensuring that the trustee is given the appropriate period of notice of the intended orders.

There are different types of splitting orders that can be made. The most common method of splitting is the “base amount” approach. This is an order that gives the non-member partner an entitlement to be paid an amount (called the “base amount”) calculated in accordance with the regulations and there is a corresponding reduction in the entitlement of the member.

Where a splitting order is made, many funds have rules which allow the non-member spouse to have their interest in the superannuation rolled over into their own fund.

It is also important to consider whether you have grounds to obtain a splitting order or a flagging order. See our other blogs following on that area.

If you would like advice concerning how you may access part of your former partner’s superannuation as part of your property settlement, contact us and we will be happy to assist you. 

Property Settlement Lawyers

Can you obtain exclusive occupation of the former matrimonial home after a separation?

Going through a separation? You might be wondering who gets to continue using the matrimonial home. Could you be entitled to the sole use and occupation of it?

Example Scenario:

Alfie and Joan are married. They have recently separated but have both continued to live at the former matrimonial home with their two children, Colin who is 16 years of age and Danielle who is 12 years of age. Colin is currently undertaking year 12 exams and is struggling with the conflict between his parents. Colin tells Joan that he can’t keep studying with the ongoing conflict and needs to have a quiet space. Joan asks Alfie to leave the family home to help make the home environment more suitable for the children and to allow Colin and Danielle to finish off the school year. Alfie is not happy about this and says that he won’t leave.

Question: Can Joan remain in the family home and require that Alfie live in alternate accommodation?

Separation

Who gets to use the matrimonial home following separation?

This issue of who will remain living at the former matrimonial home frequently arises when a couple separates. Some people will be able to resolve arrangements amicably and may agree to remain separated whilst living under the same roof.

Real difficulties can arise however where parties are not amicable. One party may not be able to  afford to arrange other accommodation but at the same time, the other party may not be willing to leave the former matrimonial home.   The parties may have children living at home and there may be issues involving domestic violence or abuse.

Section 114 of the Family Law Act 1975 (Cth) allows a party to a relationship (married or de facto) to apply to the Court for an injunction restraining the other party from doing a number of things, for example:

  1. from entering or remaining in the family home;
  2. from entering or remaining in the suburb in which the home is located.

Before such an order may be made, the Court hearing the matter must be satisfied that it would be “proper” to make the order.

Factors that a court will consider in determining what order may be proper to be made include:-

  1. The means and needs of the parties;
  2. The needs of the children;
  3. Any hardship to either party or to the children; and
  4. Where relevant, whether conduct of one party may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

This is not an exhaustive list and there are other factors which the Court in its discretion may consider.

The party seeking the order for exclusive occupation must satisfy the Court on the balance of probabilities that there are sufficient circumstances that justify the Court in making such an order.

Where domestic violence and abuse is occurring, it can be expected that the Court will place significant weight on the negative impact of that abuse upon the children when considering all the relevant factors.

You are welcome to contact us or call us on (07) 3506 3651 if you are needing assistance settling your living arrangements and financial affairs with your former partner following separation.

Long Term Relationships

Does a long term relationship mean you’re entitled to part of your former partner’s property?

A recent Australian case has shown that even for very long term relationships, there is no guaranteed right to property settlement. 

Long Term Relationships

Long term relationships

 

It is wrong to assume that a person is entitled to a family law property settlement following the breakdown of their relationship, even where it was a very long term relationship.

The Full Court of the Family Court of Australia in a judgement delivered in December 2016 dismissed  an appeal against the decision of a trial judge that it would not be just and equitable to make any order for property settlement.

The case involved a 27 year relationship. By the time that the parties separated, one of the parties had assets and superannuation worth more than double those of the other party.

The trial judge had found that the parties conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other. Various reasons for that were given by the trial judge including that:

  • There was no intermingling of the party’s respective finances;
  • The parties did not have a joint bank account;
  • Each party had purchased property in their own name;
  • Each party was responsible for their own debts;
  • Each party could use their earnings as they chose without explaining or accounting to the other party;
  • There was a complete lack of joint financial decision making;
  • The parties did not share information with each other as to their individual financial decision making or their respective financial situations;
  • Neither party had taken steps to ensure that the other would receive property or superannuation in the event of death.

The Full Court said that the trial judge had made no findings that would point to any express and implicit assumptions that a party would ultimately share in the other’s property or that one would benefit on the death of the other.

For more information on property settlements, de facto relationships or same sex relationship rights under family law, click here. Or, to receive tailored legal advice with our experienced family lawyers, give us a call today.

Merry Christmas from the LGM Family Law Team!

It’s beginning to look a lot like Christmas! From the LGM Family Law team, we wish you a safe and Merry Christmas. With only two more sleeps to go, we thought we’d share some of our favourite ideas on how to spend them.  

Merry Christmas from the LGM Family Law Team

Christmas Parade – Take the family into the City to catch a glimpse of the spectacular free Christmas Parade hosted by the Brisbane City Council in Queen Street Mall. Running from 7 – 7:30 pm tonight and Christmas Eve, it’s the perfect way to get into the holiday spirit.

Christmas Light hunting – Discover the best Christmas light displays in your local area with 4KQ’s Christmas light winner’s list. Feel the Christmas magic as you gaze at the incredible lighting displays.

Beach Cinema – Unwind while watching your favourite Christmas movie classics on the big screen. Hosted at South Bank Parklands at Streets Beach, enjoy a free viewing of Elf with your family tonight from 6 to 7:30 pm.

Most of all, make sure you take the time to enjoy your Christmas break with friends and family.

Loans and Gifts offered by parents in family law. Is there a difference?

 

 

Parents are often eager to help their adult children setting up home with their new partners. As parents, wanting to see their child build a solid financial future is natural. Which is why providing money, whether as a loan or a gift, towards the purchase of the couple’s first home is common. With the median property price for a home in Brisbane apparently exceeding $600,000, it is not surprising that for many couples starting out, breaking into the property market would not be possible without parents’ financial support.

At other times, parents may help out with finance for a new car; the cost of braces for the youngest grandchild or towards renovations for a new kitchen.

For the parents, it is a wonderful thing to be helping to set their child up for the future or simply to be making life just a little easier where possible. For the lucky recipients, it is often a welcome stress relief and unexpected boon.

Sometimes, a parent may expect that that the money will eventually be repaid. On other occasions, money may be intended as a gift, without any expectation on the parent’s part that it will be repaid.

Even where there may be some broad understanding that monies will be repaid, it is often the case that there is no written agreement or even correspondence that shows that this is what parties intended.

Difficulties can arise years later however where the couple may decide to separate or divorce. The money that the parents previously provided the couple may become an issue in their property settlement. Parents may at that point become concerned that that amount be repaid to them or at the very least that that amount be “credited” in favour of their child in the property settlement.

Why does it matter whether money is provided as a gift or a loan?

Many different factors are important at law in determining what property is available for division between former partners and entitlements of each party. For more information on this topic, see our Property Settlement Law page.

In Family Law, debts of the relationship are taken into consideration and reduce the net asset pool available for division between a former couple.

If a family member provided money to a former couple or their relation by way of a loan, then it may be viewed as a joint debt of the relationship. The balance owing will then be taken into account as a debt of the relationship requiring payment. This means the actual amount owing to the family member is deducted from the assets available for division between the parties.

If, the money received from a family member is characterised as a gift,the money gifted will be treated as a financial contribution made by the partner whose family member provided the original funds. That partner may then expect that some adjustment from the asset pool may be made in his or her favour.

It is important to note however that the partner whose family member provided the original funds is unlikely to receive a dollar for dollar adjustment in his or her favour for the amount of the original gift.

In some cases, when money is gifted very late in the relationship, the gifted amount may be quarantined in favour of the partner whose family member provided the original gift or the monies may be excluded from the pool of assets being divided between the former partners. However, whether this will occur will depend on many different factors, including at what stage in the relationship it was received. However, there is no guarantee that money received late in a relationship will be excluded by the Court when determining what property is available for division and how it should be divided.

It is not uncommon after separation for a dispute to arise in relation to whether money received from family members was a gift or a loan. Clearly, one partner will benefit if their family member receives their money back and then they receive their entitlement from the reduced asset pool, only to have the money re-gifted or the debt waived once the property settlement with their former partner is finalised.

Where there is a dispute whether monies were provided by way of loan or gifted, a Court will closely consider the terms of the arrangement in order to ascertain whether the money was intended as a gift or whether it actually is a debt of the relationship and should be repaid by the parties.

Is it a gift or a loan?

The Court will consider all of the circumstances surrounding the transfer of the money, including but not limited to:

Whether there is a written agreement providing the terms of a loan;
Whether there is a finite loan period or a date/s for repayment;
Whether there have been any repayments made;
Whether there have been any requests for payment from the alleged lender prior to separation;
The purpose or intention behind the transfer of the money;
at what stage of the relationship it was received;
How many years it has been since the money was provided and whether subsequent actions (or inaction) has changed the nature of the initial agreement;
Whether the alleged loan is secured by way of mortgage or charge; and
Any other relevant factors.
If you are intending to loan a family member who is in a relationship or marriage some money, or you are the recipient of an inter-family loan, all parties should obtain independent legal advice and ensure that the loan is appropriately documented before any funds are provided.

If you would like more information on how to determine whether monies are likely to be characterised as a loan or a gift, please do not hesitate to contact LGM Family Law. Or call us today for a free 15 minute consultation.

Is it okay to use Social Media and Email during my family law matter?

 

We see people letting off steam all the time through social media platforms like Facebook, twitter and Instagram. Email and text messages too are an easy way to vent our feelings. In a matter of seconds, your comments may also be shared on Facebook; your tweets re-tweeted or your emails or texts received and forwarded. Beware that using social media, email or text to vent during a family law matter is definitely a perilous thing to do.

Can social media be used in a family law matter?

Guiding Principle

The guiding principle is fairly simple. You should not use social media, email or any form of messaging to discuss or comment upon your family law matter or anything or anyone involved in your family law matter. You should especially avoid comments relating to your former partner’s behaviour or requirements concerning your family law matter; your children in relation to your separation; anything or anyone related to a family law action or comments on any other subject relating to negotiations or agreements to be entered into with your former partner.

If you do this, you risk prejudicing or at least complicating your own case. Even where you are not in Court, these entries, emails or texts may prejudice any claims that you are making for property settlement or damage your claim for arrangements that you seek for your children by revealing information that may undermine your case. Those entries may also lead your former partner or his or her solicitors to make enquiry about matters that would not otherwise have come to their attention but for the communications that you may have made.
If you are in Court, you may well find that your social media entries or emails or texts are reproduced in your former partner’s affidavits to your detriment.
You may also be committing an indictable offence under section 121 of the Family Law Act 1975 (Cth).

Prejudice to your case/Live Examples

Imagine for example that you are claiming that you are available to care for your children and are therefore seeking that they spend time with you for five nights every fortnight. An entry that you made on facebook some time previous however refers to your plans to work interstate on a fly in fly out basis. It may be that those plans have been aborted or it may be that your fly in fly out arrangements do not interfere with the care arrangements that you are seeking for your children. Either way, production of that facebook entry by your former partner or his or her lawyers may well complicate your claim.

Another example would be facebook posts or tweets that refer to your recent overseas travel at a time when you are claiming spousal maintenance from your former partner. You are entitled to enjoy a holiday. It may even be that the particular holiday was done on a close budget. However, whilst you must disclose details of your financial circumstances, facebook entries of this kind in the hands of your former partner or his or her solicitors may again complicate your claim, possibly raising the spectre that you may not have the required financial need for spousal maintenance or causing your former partner or his or her solicitors to make enquiry requiring further disclosure of any other funds that may be available to you.

Risk of breach of Family Law Act and possible prejudice to claims you are making

Comments that you may make through social media, email or messaging, for example, sharing a post on facebook or instagram or tweeting, may involve a breach of section 121 of the Family Law Act punishable on conviction by imprisonment for a period of up to one year. There may be a breach of that section where those comments identify any parties; related persons (such as children; an Independent Children’s Lawyer of Family Report Writers) or witnesses to proceedings before the Family Court of Australia or the Federal Circuit Court of Australia. You should be aware that your former partner and his or her lawyers may be looking at your facebook entries. This will be a risk even where you have strong privacy settings or you have set up restricted groups to share information.

The safest policy

…is to avoid using social media during your family law matter and not to make any comment about it; your former partner or any other person connected to your family law matter in any emails or messages that you may send.

If you need advice or want to learn more, contact us today and receive a free 15 minute consultation.

A reason for caution in Family Reports and how your children will be involved.

Things to be aware of in family reports and how your children will be involved.

Children

Family reports and how your children will be involved.

If you are before the Court in a parenting matter, you may expect that the Court will make interim orders requiring the preparation of a family report. The report is prepared by a family report writer after he or she will have spoken with you and your former partner and quite likely your children also. Dependent upon the age of your children, the time that the report writer spends with your children may be more discussion or play based.

The report that the report writer prepares is filed in the Court and forms part of the evidence before the Court. The report will likely include some account of the interview held with each of you and your former partner and the children. Where children have expressed a view about how much time they wish to spend with each parent, you may expect that this will be included in the report. At the same time, the report writer is likely to include in the report some observations concerning the level of maturity of the children and the consequent weight to be given to their views. The more mature the child appears to be, the greater the weight you may expect will be given to their views.

The amount of time that the report writer spends interviewing a family varies but it is not unusual for the interviews with each of you and your former partner and children to extend collectively over approximately 4-6 hours for a family of four and sometimes longer. However, whether the collective interview period is some 4 hours or 8 hours, the opportunity that the report writer has to gain some insight into the dynamics of a family can sometimes be quite limited.

Report writers are typically very experienced and adept at concentrating the interviews on the areas in issue. Nonetheless, the views that they form are predicated on the information available to them. That information includes the evidence as disclosed by the affidavit material filed by both you, your former partner and any medical experts as well as information gleaned during the interview process.

Even if certain facts concerning your family are evident to you, unless those facts are borne out by independent evidence filed in your case, you risk the report writer considering that what you believe are facts are a matter of your opinion only.

A family report is one tool but an important tool available to the Court to assist in its determination regards what Orders should be made concerning your children. The Judge is not obliged to accept recommendations made by the Family Report Writer but those recommendations may be persuasive. If you are not satisfied with any recommendations made by a Report Writer, you may take issue with them before the Court but before doing so, you need to be sure that there are justifiable grounds for doing so.

For some people, it is not possible to reach agreement with their former partners concerning their children and a Court action becomes necessary. It is important to understand the role of the family report. It is also import to ensure that any allegations that you may have, whether concerning mental health or drug issues affecting your former partner or going to the competence or otherwise of your former partner to provide appropriate care for your children, are properly evidenced, including appropriate independent third party evidence.

If you would like to learn more about arrangements for children, read here. Or, you can contact our experienced staff today to find out how we can help you in your family law matter.

Court Hearing

Tips for Appearing in Family Courts

Preparing for a family court hearing? It can be a stressful and emotionally-fulled time in the lead up to a court hearing. However, it’s important to know what to expect and how to prepare for your court hearing in order to achieve the best outcome.

Court Hearing

Preparing for a court hearing in family law.

This article is intended to help you whether you are representing yourself in a court hearing or are going to have legal representation. We have set out below some of the things that you should do preparing for Court as well as things to do and things to avoid in the courtroom.

Be Prepared

You will need to be sure that you have prepared and filed with the Court within the required time all of the documents that are required for your next hearing. If you are self representing, it will help you to find what you need when you are before the Court if your files are organised and clearly marked. Make sure too that you have a pen and note pad with you. If you have not been in a court before, it can help put you at your ease if you sit in a courtroom before your hearing so that you can see the court layout and understand something of the court process. Most court hearings are heard in open court so that you are permitted to enter the court.

What to wear in Court

The court is a formal place so you should dress accordingly. If you are a man, this does not mean having to wear a suit but long trousers, a shirt and appropriate shoes are a good idea. For women, a neat dress or long pants and shirt would be appropriate to wear.

Make other arrangements for your children

You should make arrangements for your children’s care for the day when you come to court. Court is not generally an appropriate place for children.

However, if as a result of a Court Order, your child needs to attend court to speak to a family consultant or judicial officer, you should check with court staff or through your solicitors in advance whether any child-care arrangements need to be made for the day.

Family and friends

You may wish to bring an adult family member or adult friend with you on the day in Court for support. There may be quite a bit of time that day spent waiting for your case to be called before the Judge or Registrar so it can be helpful to have some company. However, you should know that it is only your solicitors or if you are self represented, you, who may speak on your behalf in Court unless Court approval is obtained.

Arrive Early

We suggest that you arrive at Court at least 30 minutes before the time set down for the hearing and once there, locate the Court where your case will be heard.

There is generally a duty lawyer available (if you are eligible for assistance) to assist you on the day of your court hearing but you should be aware that their time is limited.

Inside the courtroom

The court officer or associate will generally appear outside the courtroom some time before the time that your case is set down for hearing. If you are self representing, before you enter the courtroom, you should present yourself to the court officer or associate and give them your name and let them know that you are self representing. If you have solicitors acting for you, they will inform the court officer or associate of your presence.

Once inside the courtroom, you will have to wait for your case to be called as there may be a number of cases listed on the same day. During this time, you should avoid talking whilst the Court is in session. You will need to stand each time that the Court commences or adjourns. The court officer or associate will signal the appropriate time to stand by saying ‘All rise’ or ‘Please stand’.

When your case is called and addressing the Court

When you hear the court officer or associate call your case, you should stand and sit in the place where your solicitors indicate behind them at the bar table.

If you are self representing, you should walk to the bar table as the court officer or associate directs. You will need to take your files and paperwork with you but be careful not to put any bags or cases on the bar table.

If you are self representing, you should stand whilst you and the other parties announce themselves. You announce yourself by stating your name and whether you are the applicant or respondent.
In the Family Court, either a judge or registrar will hear your case. In the Federal Circuit Court, a judge or for divorce hearings, a registrar, will hear your case. You should address a judge as ‘Your Honour’ and a registrar as ‘Registrar’.

Where you are self representing, you should stand each time that you are speaking or being spoken to in Court unless the Court directs you otherwise. You should be careful to speak clearly and politely and not to address any person other than the judge or registrar. You should not raise your voice and your face should be impartial no matter that the other party or his or her Counsel may make comments with which you do not agree.

When Orders are made and leaving the courtroom

The judicial officer will state the orders that are made and reasons given. Those orders will not be issued in hard copy until some time after the hearing so it is important if you are self representing that you write them down when they are being announced as well as reasons given. If you miss hearing part of the orders or are uncertain as to what was said, whilst you are still at the bar table, you should ask for the orders to be repeated once the judicial officer has finished speaking. If you do not understand any of the orders, you should ask the judicial officer to explain their meaning.
If a decision is reserved or held over for another time or date, you must attend court when the decision is handed down.

The Orders made will generally state the time and date for the next hearing if your case is ongoing. Once orders on a particular day are made, you can leave the bar table and the courtroom. If the Court is still in session after your matter is heard, as you leave the courtroom (and any time that you enter or leave the courtroom when the Court is in session), you should pause briefly at the door briefly and nod to the judicial officer. If your case is the last to be heard on the day, you should stand at the bar table while the judicial officer leaves the bench.

Personal Safety

If you have any worries about your safety, you should let the Court know at least two days in advance of any court date. The Court can assist with your safety when attending court. You can inform the Court by calling 1300 352 000 and speak with a Client Service Officer who will decide what arrangements are needed for your safety at Court. You must tell the Court in advance if there is a current family violence or protection order.
If you have concerns about your safety outside the Court or any questions about family violence, you should contact the police or seek legal advice about obtaining a Protection order.

If you’re looking for legal representation in a family court hearing or would like some legal advice, our family lawyers are happy to help. We even offer free 15 minute consultations over the phone.

Dispute Resolution

How could Family Dispute Resolution help you?

What is family dispute resolution and how could it help your situation?

Dispute Resolution

How dispute resolution could help your family.

It is surely in children’s best interests that parents agree arrangements concerning them following separation. This avoids the trauma that children can suffer where a legal action is involved and also reduces the legal costs of reaching a final agreement.

Parties can work towards reaching a consensual agreement with the assistance of professionals such as counsellors and mediators. However, where an amicable agreement cannot be reached, before a Court action may be started seeking parenting orders, parties are required to have attended family dispute resolution and obtained a certificate (known as a section 60I certificate) from a family dispute resolution practitioner. This requirement does not apply in certain situations, including where an application is urgent or where there has been, or there is a risk of, abuse or family violence.

A family dispute resolution practitioner assists people effected or likely to be effected by separation or divorce to resolve some or all of their issues with each other.

For more information on separations or parenting plans, see our website. Or, you can contact our friendly staff today and get the help you need to move forward in life. You can even give us a call and receive a complimentary 15 minute free consultation with one of our experienced legal team members.

Family Solicitors

What is Property Settlement?

Going through a separation and need to divide your property? A guide to property settlement and what it means, from our family solicitors.

Family Solicitors

Property Settlement explained by our Family Solicitors.

 

Property settlement is the process of finalising the financial ties and arrangements that you have with your former partner. The complexity of dividing your property can depend on a number of factors, but it’s important to understand what it is and how it works. Our family solicitors have provided a simple guide to property settlement.

You and your former partner may own a house where you lived during the relationship or you may own rental properties. You may have a business or hold other property or investments. Whether property is owned by you and your former partner jointly or separately, it will need to be decided what happens to each item of property in a property settlement.

For example, the house or different rental properties may be sold or you or your former partner may retain one or more of those properties and take over any mortgage/s over that property.

However property is divided, the value of each asset and liability is agreed so that an account can be taken to ensure that each of you and your former partner receive your overall entitlement in the property settlement. For example, if one of you retains the house and there is no other real property, it may be that the other party receives some cash payment or other asset.

The way in which assets and liabilities are divided will depend upon several factors. The Family Law Act 1975 sets out the different steps that are considered to work out what entitlement each of you and your former partner will have to property settlement.

There is no mathematical approach. Each relationship and your personal circumstances are different. Hearing from friends then about other people’s experiences may be interesting but it is not going to tell you where you stand.   You will need to obtain advice based on your personal circumstances about how property may be divided with your former partner.

Want to learn more about property settlements? Read here. Or, give our experienced family solicitors a call today.

Family Law Solicitors

What if my former partner won’t agree to have a property settlement?

You want to obtain a property settlement but your former partner refuses. What can you do? Our experienced family law solicitors shed some light on this issue.

Family Law Solicitors

Property Settlement advice from our Family Law Solicitors.

 

It sometimes happens that a former partner does not want a property settlement, whether for personal reasons or because they do not understand the process.

Even in this situation, you can obtain a property settlement. We would generally recommend that you write to your former partner through your lawyers and propose negotiating a property settlement or some other processes such as mediation at an appropriate time.

If your former partner does not respond or does not respond in a reasonable way, you have the option to bring an Application for property settlement before the Court. We regard a court action as the last resort, particularly in view of the costs that can be involved. However, in some situations, especially where attempts at negotiation become protracted or time limitations may be ready to expire, it can be sensible and even necessary to start a court action.

You should bear in mind that you and your former partner may still reach an agreement and obtain Consent Orders even after a legal action is started. The Court will anyway generally order some form of mediation and many parties will settle property then or soon after.

For more information on property settlements, click here. Or, get in touch with our family law solicitors today.

Property Settlement

Do I have to go to Court for a property settlement?

Considering starting a property settlement? Wondering about the process? There can be lots of unanswered questions surrounding the situation and some may make you a little nervous such as: Will I have to go to court? Find out a bit more about the process of property settlement here from our highly experienced legal team. 

Property Settlement

Property Settlement

 

 

 

Will I have to go to Court?

Not usually. If you and your former partner agree how the property pool is to be divided, you can obtain Consent Orders confirming that agreement. This is done by completing an Application for Consent Orders which is signed by both you and your former partner and is filed in the Court together with the form of the Orders that you are requesting the Court to issue. If the Orders that you are requesting from the Court include a split of superannuation held by one of you, you will also need to ensure that you comply with requirements regarding the superannuation fund.

If the Court considers that the way in which you and your former partner propose to divide the property pool is just and equitable in your circumstances and your Application meets all the requirements, the Court will issue Orders as you have requested.

If you and your former partner cannot reach agreement, there are still processes that you can follow towards reaching an agreement. For example, you may negotiate an agreement through lawyers or go through a mediation. Even if a court action is started, the Court process encourages settlement. Most people involved in a court action will reach agreement during that process and obtain consent orders so very few cases go through to a final trial.

Want to learn more?

For more information on property settlements, visit our useful collection of blogs and articles here. Or, to speak to an experienced property settlement lawyer today, give us a call. We offer free 15 minute consultations over the phone, to help you on your journey forward.

Brisbane Family Lawyers

What is Property? Find out from the Brisbane Family Lawyers.

There are a number of terms thrown around in family law, that can often leave you feeling puzzled. Even words commonly used in everyday language like “property”, take on a very specific meaning when being referred to in a legal matter. As part of our unique services as Brisbane Family Lawyers, we ensure that our clients are fully-informed from the start. Any questions or matters that impact them will be made transparent, so that you, as the client, can make comprehensive choices about your family law matter and how it is dealt with.

A common term that comes up in family law is, “property”. As property settlements often form part of a family law matter, it’s good to be aware of what the term entails.

Brisbane Family Lawyers

Brisbane Family Lawyers

 

What is ‘property’?

The property that is taken into account in a property settlement is basically all of the assets which either or both of you and your former partner own or control.
This will include real property (including the matrimonial home which you and/or your former partner own or control); interests in companies and businesses and their assets;share and investment portfolios; superannuation; bank account balances; time shares; vehicles; bikes; boats and furniture and chattels such as fine art; jewellery and antiques. The property pool may also include any interest or entitlement that you or your former partner may have in any trust.

If you’re interested to learn more about property settlement, read more here.

Our Brisbane Family Lawyers specialise in a number of areas. From divorce, to child custody, to de facto relationships. No matter your question or situation in family law, we can help. Give our Brisbane Family Lawyers a call today on (07) 3506 3651 and receive a free 15 minute consultation to start your journey forward.