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How that new engagement ring might affect your relationship with your former partner | Property Settlement Advice

The family court has said that after separating, “parties are entitled to… properly [get] on with their lives.” So, for those people who have separated, and are ready to take the next step with their new partner – fear not! The law is on your side.

If you’re ready to buy that engagement ring for your new partner, or if you are the new partner, the first thing to ensure is that the ring is not being purchased from funds which existed at or prior to the separation of the partner from his former partner. You should ensure that funds being used to buy the ring were acquired entirely post-separation.

Property Settlement Advice

Property Settlement Advice Brisbane

If, for example, after you have separated from your former partner, you sell the car you acquired while you were with your former partner, and then use that money to buy the engagement ring for your new partner, this would constitute a “premature distribution” of matrimonial assets on your part.

This doesn’t mean that you have to give the ring to your former partner; it just means that the Court will consider that you have therefore had the “benefit” of that matrimonial money and an adjustment may as a consequence possibly be made in favour of your former partner out of the net assets that are available for distribution between you.

That’s not to say that every time you spend money that was acquired during the relationship with your former partner, you have to effectively account for it in your property settlement with your former partner.  Parties are able to use funds acquired during a former relationship for day to day living expenses post-separation where needed. However, the purchasing of an item such as an engagement ring for a new partner, would not be considered such a “day to day expense”.

In family law proceedings, so far as practicable, the Court has a duty to end the financial relationship between the parties to a marriage or a de facto relationship. The court must also ensure that it does not “alter the property rights of the parties, unless justice requires it to do so”.

This means that if you buy an engagement ring on a credit card and pay off that credit card debt from funds that you obtained entirely post separation, be that on your own or with the assistance of your new partner, you can expect that the engagement ring, or its value, would not be treated as part of the property pool available for division between you and your former partner. However, where assets are required by a party from post-separation income, they may be considered in the property settlement with the former partner in so far as those assets are available to the party.

If you have any questions on how to move forward financially with your new partner, when you have not yet finally settled your financial relationship with your former partner, call our family law team on (07) – 3506 3651. We can offer you experienced property settlement advice.

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.

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.