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Brisbane Property Settlement Lawyers

Are you really in a de facto relationship? | Brisbane Property Settlement Lawyers

Are you really in a de facto relationship? If you are not truly de facto, you have no claim for family law property settlement.

In Australia today, de facto relationships are on the rise. It can become especially important for you to know whether or not your relationship is considered a de facto relationship at law if you wish to  make a claim for property settlement following the breakdown of that relationship.

The Court may only make an order dividing property after the breakdown of a de facto relationship  where the Court is satisfied that:

  • the period or the total of the periods of that relationship is 2 years; or
  • there is a child of the de facto relationship; or
  • the party seeking property orders made substantial contributions to the property of either or both of the parties to the relationship or to the welfare of the family and the failure to make an order would result in serious injustice to that party; or
  • the relationship is or was registered under a prescribed law of a State or Territory.

What is a de facto relationship?

  • Parties must not be married/related by family (although they may be married to other persons)
  • They must be a couple living together on a genuine domestic basis

Where one party disputes that there was a de facto relationship with another person, it is often on the basis of a claim by that party that he or she was not a couple with the other person living together on a genuine domestic basis.

If you were before a court, no particular finding determines whether or not that requirement is met but the following factors will be of relevance where a court is determining if a de facto relationship existed:

  • Duration of the relationship
  • The nature and extent of any common residence
  • The existence or otherwise of a sexual relationship
  • The degree of financial dependence or interdependence and any arrangements for financial support between the parties
  • Ownership, use and acquisition of their property
  • The degree of mutual commitment to a shared life
  • Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
  • Care and support of children
  • The reputation and public aspects of the relationship
Brisbane Property Settlement Lawyers

Brisbane Property Settlement Lawyers

Is it worth your while to make a claim for property settlement or to seek order for division of property?

Even if at law you can say that you were in a de facto relationship with your former partner, it is very important before you ever embark on negotiations with your former partner or legal action seeking orders for division of property that a careful cost/benefit assessment is made for your circumstances. You will want to be clear that the end result (obtaining court orders) will have been worth not only the financial cost but also the emotional toll it may take on you.

In making that assessment, you will want to take into account:

  • The likely range of your entitlement for the division of property and how that translates in dollar terms., ie., the aggregate amount that you are likely to receive or retain pursuant to court orders for the division of property
  • What amount are you likely to spend in legal fees in pursuing your claim?;
  • how long it can take to resolve the matter, particularly where a court action may be involved. If your former partner disputes that a de facto relationship existed, a discrete court hearing to determine whether there was a de facto relationship at law will add considerably to the cost of obtaining final orders for division of property (assuming the court finds in your favour that a de facto relationship existed) and the time taken to obtain those orders. It is not uncommon for it to take some 12 months or more before a matter reaches a trial and there can then be further delay whilst the Courts are congested before final orders are issued.
  • The risk (where you do not seek final orders now for the division of property) that your former partner may make a claim in the future seeking final orders and at a time when your net asset position has increased. You may not at this time be able to assess the relative merits of such a future claim and whether or not it would be likely to succeed. However, if you obtain final orders, it is less likely that your former partner would be able to later have those orders varied or set aside.

Still not sure or need help?

Know where you stand. Contact our Brisbane Property Settlement Lawyers today and receive tailored legal advice. Our experienced team can help give you the confidence

Family Law Property Settlement

How will Long Service Leave be treated in your family law property settlement?

Undergoing a family law property settlement? You might be interested to know how long service leave will be considered in dividing up your assets.

Family Law Property Settlement

Family Law Property Settlement

During a relationship, a party may accumulate fairly significant entitlements for long service leave. If the relationship breaks down, the other party to the former relationship may seek to require that those entitlements are taken into account or shared in the final division of property between the parties. It will be important to know how the court considers that entitlement and whether that other party has any claim on it.

To understand the position of the Court, it is necessary to understand the difference between assets and financial resources.

Property and Financial Resources

Property or assets, in a family law sense, includes real property, personal property and choses in action, such as the family home, a car, or a trust where a party is both the appointor and the beneficiary with unfettered control of that trust.

In contrast, a financial resource is something which is not in the possession or control of a party, but something to which that party may be entitled to at some point in the future. That entitlement may arise in a particular set of circumstances or at a particular point in time. It may include something like a family trust of which a party is a discretionary beneficiary (but not additionally a trustee) or in some cases, an anticipated inheritance (particularly where the Testator has not yet deceased).

Depending upon the circumstances, long service leave may be treated as akin to an asset or merely a financial resource.

If the long service leave is treated as in the nature of property, then it can form part of the asset pool that can be divided between the parties in a family law property settlement.

However if it is treated as a financial resource, then it is considered as a contribution during the relationship made by the party who is entitled to it and a factor that, dependent upon the particular circumstances, may be taken into account and lead to a percentage adjustment of the asset pool in favour of  the other party.

For example, a person’s long service leave may be considered in the nature of an asset rather than a financial resource where the person entitled to it could take the leave as either a lump sum or periodic payments, but only as a periodic payment if that person found a temporary replacement for himself  or herself whilst taking the leave. If a person has cashed in their long service leave entitlement and the cash or assets purchased with that cash remain in existence, then that cash or assets would more likely be treated by a Court as available to be dealt with in any property settlement between that person and his or her former partner.

However, where a long service leave entitlement has accrued but has not been taken, a Court may treat it as only a financial resource.

The way in which long service leave is treated can have a significant bearing on the outcome of a property settlement in family law.

If you have any questions about family law property settlement or would like advice in this area particular to your circumstances, you are welcome to contact us and we will be happy to assist.

 

Property Settlements

Former partner wasted your assets? Can property settlements help you recover any losses?

Can property settlements help you recover assets your former partner wasted?

Property Settlements

Former Partner wasted your assets? Can property settlements help?

 

Your former partner may have spent money during your relationship on a regular basis gambling or buying alcohol or making high risk investments that resulted in financial losses.  Your former partner may have sold assets, particularly towards the end of your relationship and later failed to account for the proceeds from sale of those assets.

We are often asked in these situations what the other partner may claim in a property settlement to recognise any wastage of assets by the former partner or to compensate that other partner in relation to a disposal of assets by the former partner.

This is an area of law which has been the subject of scrutiny in more recent years. In some previous cases, the Family Courts had taken an approach of  adding back into the asset pool in certain instances the value of assets which had been wasted or disposed of by the former partner and treating those notional assets as having been received by that former partner as part of his or her property settlement.  This had the effect, in appropriate circumstances, of treating assets which no longer existed as part of the asset pool available for division between parties.

However, a relatively recent decision of the High Court of Australia has again emphasised that property orders may only be made in relation to property which actually exists at the time that the orders are made.  Whilst wasted assets or assets which have been disposed of then may not be treated as part of the notional asset pool, the other party may claim an adjustment in his or her favour out of the existing asset pool on the ground that it is just and equitable in view of the conduct of the former partner.

It is not all losses flowing from investment decisions made by a party to a relationship that would justify an adjustment being made in favour of the other party. Losses as much as profits may arise from legitimate investment decisions made in the pursuit of matrimonial objectives.  For the losses to be considered as justifying an adjustment in favour of the other party out of the asset pool, the former partner would need to have been acting in a particular manner, for example, acting recklessly or negligently or with wanton disregard in dealing with the assets.

If you want to learn more about property settlements, click here. Or, contact our friendly staff today today to set up a consultation.

Property Settlement Brisbane

How long does it take to obtain a property settlement? Find out from the Property Settlement Brisbane Lawyers.

Considering obtaining a property settlement? Wondering how long it will take? Find out from the Property Settlement Brisbane Lawyers. 

Property Settlement Brisbane

Property Settlement Brisbane Lawyers

There is no precise answer to this question as the time it takes will depend upon a number of factors, including how willing you and your former partner are to negotiate a settlement and how long it takes for parties to provide the necessary information as well as financial documents that each party must give the other party.

If you and your former partner have already agreed how the property pool will be divided and can quickly provide the required information and documents, we find that it generally takes from 3-6 months to finalise a property settlement.

If no agreement can be reached and it becomes necessary to bring an Application for property settlement before the Court, the time involved will likely be considerably longer. This is so unless a final settlement is agreed soon after the action is started. You should bear in mind that you and your former partner may still reach an agreement and finally settle property, bringing any legal action to an end.

To find out more about property settlement Brisbane, click here. We have a range of useful blogs and resources to help you learn more about the property settlement process, and to help you choose what solution will work best for you. Or, if you would like some personalised advice, you can give us a call today to receive a free 15 minute consultation. We can give you the guidance and support you need to start your journey forward.

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.