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Property Settlement Lawyers Brisbane

Will I have a claim for property settlement following the breakdown of my relationship? | Family Lawyers Brisbane

Q: Will I have a claim for property settlement following the breakdown of my relationship?

This is an important question and particularly where you have not been married to your former partner.

We have seen in last week’s blog that the Court may only make an order dividing property where the persons affected are not married, after the breakdown of a de facto relationship.

In order for a relationship to qualify as a de facto relationship at law, not only must the parties not be married or related by family, they must be a couple living together on a genuine domestic basis, having regard to all the circumstances of their relationship.

The term “genuine domestic basis” is not a term of art but is to be given its ordinary meaning.

We outlined for you in our blog last week some of the factors or circumstances that will be of relevance where a court is determining if a de facto relationship existed.

It is not necessary that any particular circumstance is found in order to determine that a relationship is a de facto relationship.  The Court may have regard to any matters that seem appropriate to the Court in the circumstances of a particular relationship and may attach what weight (or importance) that the Court considers appropriate to any particular circumstance.

The Family Court of Australia in a decision in 2011 has said that for a de facto relationship to be found to have occurred, there must be the manifestation of “coupledom”, which involves the merger of two lives.

The Court found that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”.

The Court took the view that the fact that the parties have never lived together in a common residence was an indication that they have not “lived together as a couple on a genuine domestic basis”. The Court considered that that indication would be “especially significant where parties have not shared the common burden of maintaining a household”.

The fact that one or both of the people involved may have at some stage intended eventually to marry would not in itself lead to a conclusion that they were involved in a de facto relationship.

The Court considered that there must have been a manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”.

In next week’s blog, we will look at some examples of relationships where the Court has found that a de facto relationship did not exist. Remember, it is very important to know whether or not you are or have been in a de facto relationship. Unless you have been, you will not have a claim for property settlement following the breakdown of the relationship.

Family Lawyers Brisbane

Family Lawyers Brisbane

What next?

Contact us for advice whether your relationship is likely to be considered a de facto relationship at law and what is your likely entitlement for the division of the net assets that you and your former partner hold, whether together or in your separate names.

Our experienced team of Family Lawyers Brisbane, can offer you tailored legal advice, to help you move forward in life. Give us a call today to receive a FREE 15-minute consultation.

 

North Brisbane Divorce Lawyers

Do I still need a lawyer if I’ve reached an agreement with my former partner? | North Brisbane Divorce Lawyers

We as family lawyers love hearing that a separation was amicable, or that someone is still on good terms with their former spouse or partner. However, agreeing to divide your property without obtaining a legally binding property settlement can leave you exposed in a number of ways.

Limitation periods

If the limitation period has not yet lapsed (see our article on time limitations), your former partner may initiate proceedings in Court seeking a legally binding property settlement, even though you have previously agreed something informal between yourselves.

Even where the limitation period has lapsed, if the Court is satisfied that hardship would be caused to your former partner or a child if leave were not granted to bring the action out of time, leave may be granted for your former partner to bring the matter before the Court outside the limitation period.

Generally, the property pool which is available for division between parties is the property pool as it exists at the time that a final property settlement is made.  Any assets acquired by either party post separation from savings or other assets acquired during the relationship may then be included in the property pool available to be divided between the parties (although adjustments may be made in favour of a party regarding their particular contribution post separation). If then, for example, you had received the family home when you negotiated an informal settlement with your former partner and since sold that property and used the funds from the sale to buy a new house, that new house (including any increase in capital value since its purchase) may form part of the property pool available for division with your former partner.

Legally Binding Agreements

There are a number of ways you can make your agreement for the division of property legally binding.

These include:-

  1. Consent Orders- the terms of the Orders are agreed between the parties and an Application signed by each party is filed in the Registry of the Family Court seeking that the Court issue the orders in the terms as agreed;
  2. Court issued Orders – after the parties have progressed through a trial, the Court determines what is a just and equitable division of property; and
  3. A Binding Financial Agreement made in accordance with the requirements of the Family Law Act 1975 (Cth).

When parties are able to agree as to how to divide their property, whether that’s over a cup of coffee or with the assistance of a lawyer, a lawyer can then assist with drafting the Application for Consent Orders as well as the Orders that you are seeking that the Court issue.

North Brisbane Divorce Lawyers

Why you still need a lawyer | North Brisbane Divorce Lawyers

It will be important to first obtain legal advice where you are seeking Consent orders to ensure that the proposed division of property is within the range of what the law would regard as just and equitable for your particular circumstances.

Contact our team of North Brisbane Divorce Lawyers today for an initial consultation regards how best to finalise your property settlement.

Blended Families and Property Settlements | Property Settlement North Brisbane

If your former partner from your second marriage has contributed to the support of your children from your first marriage, could this affect your property settlement? Find out from our property settlement North Brisbane Lawyers. 

property settlement north brisbane

Property Settlement North Brisbane

If you and your former partner have been a blended family, you may want to know how contributions towards the living costs of a step child may effect your family law property settlement.

You may have children from a previous relationship and been in a subsequent relationship where your new partner had assisted with their living costs.  If you and that partner separate, can your former partner then claim  some benefit in a property settlement for having provided that financial assistance?

At family law, it is the parent of the child who has a legal duty to maintain the child of a former relationship.   That duty has primacy over the duty of any other person, other than the child’s other parent, to maintain the child.

For example, if Mary has two children from a former relationship with Bruce and Mary then marries Jack, Jack has no legal duty to maintain those two children if there is no court order requiring him to do so.

If Jack does contribute towards the support of Mary’s children from her former relationship, his contribution is a factor that can be taken into account in any property settlement should Jack and Mary later separate. Jack’s contribution may in appropriate cases lead to an adjustment being made in his favour out of the property of Jack and Mary that is available for division between them.

However, Mary’s contribution towards supporting those children is not taken into account in her favour in a family law property settlement as she is the parent and is merely honouring her legal obligation to maintain her children.

Want to know more?

If you’re interested in getting a property settlement North Brisbane or anywhere in Australia, contact our team at LGM Family Law. We offer FREE 15-minute phone consultations, to help you get started.

Contact our team for advice on property settlement North Brisbane or anywhere in Australia today.

Property Orders

Does a reconciliation with your former partner mean property orders no longer apply?

You may have gone through the process of separation and obtained property orders but have now  chosen to reconcile with your partner. If this is the case, you should not assume that your property orders will automatically be set aside or have no further effect just because you have reconciled. 

Property Orders

Property Orders – Can they be thrown out if you reconcile?

Orders of the Court take effect and are enforceable once they are made. If you want to ensure that the orders made can be disregarded and are no longer binding on you and your former partner, you must first make an application to the Court seeking an order that the property orders be set aside.

In a recent case, property orders had been obtained by parties by way of consent. However, as the couple had chosen to reconcile after the orders were made, the wife was seeking to have those orders varied or set aside.  In that case, it was a term of the property orders that the home be sold and that the husband and wife share equally in the net sale proceeds.

The Full Court found that the mere fact of the parties having reconciled was not by itself sufficient to for the court to find that the parties had impliedly consented to the property orders being set aside. The court said that regard had to be had to the circumstances of the couple’s relationship in order for the court to decide whether or not it could be inferred or concluded that the couple consented to the property orders being set aside even though the couple had not expressly agreed that the orders be set aside.

If you and your former partner reconcile then and want to ensure that existing orders will no longer apply, it will be important to obtain legal advice and make application to the court for the orders to be set aside. For more information on property settlement or for legal advice tailored to your circumstances, call our Family Law Team on (07) 3506 3651 today.

 

Property Settlement

When Harry met Sally: Follow their story in Family Law Property Settlement

Follow Sally and Harry’s story each week: How will Sally resolve her family law property settlement claim against her former partner Harry?

Property Settlement

Property Settlement

 

Sally’s story so far

It’s April 2017 and Sally has just returned home from dropping her little ones off at school. The start of a new term and Benny and Izzy had been so excited to be back amongst their friends. The twins were only 5 years old and loving being at Prep school.

It was a constant struggle for Sally since she had separated from Harry just over a year ago now.

They had been married for 10 years. The first few years of their relationship had been carefree and without children, they had mostly just concentrated on each other and having a good time.

Sally had continued in full time employment before the twins were born. She had worked in the fashion industry as a buyer for one of the large department stores and had loved her job.

Sally has stopped work just before the twins were born. She hadn’t full appreciated what having children would entail but she and Harry could not have been more delighted when they were born. Sadly though, over the last 5 years or so, they had gradually grown apart.

It wasn’t easy now being effectively a sole parent. The children did spend time with Harry but only when he said he had the time. Sally didn’t doubt that Harry loved the children but his time was so limited. He was constantly travelling away from Brisbane on work and often working long hours even when he was at home.

It was hard for Sally then to know when she could be available to commit to regular work hours, even on a part time or casual basis.  But she was feeling very much that she needed to organise her financial affairs and to reach some property settlement with Harry. Unless she could that, it was just so difficult to plan for the future.

Sally was feeling very burdened, not knowing where she stood or how to go about making a property settlement with Harry.

She didn’t know what she would be entitled to from their property. Sally still held some shares that she had bought before she married Harry but otherwise, most of their property- essentially their house and superannuation- had been accumulated from Harry’s earnings during their relationship.

What should Sally do towards obtaining a family law property settlement?

We would recommend to Sally that she has an initial consultation with a family lawyer experienced in property settlement matters so that she can obtain some preliminary advice about how her entitlement for settlement of property is worked out and what she could expect. Next week in this series, we will look at some family law issues that Sally will need to consider.

At LGM Family Law, we offer a free phone consultation for up to 15 minutes when we can give Sally some general advice.

It is likely though that Sally will need more detailed advice than can be given over that time so we would recommend that Sally book a longer initial consultation with us when we will generally be able to give Sally an indication of her range of likely entitlement for property settlement based upon the information Sally gives us during the consultation. We can also work out a plan for Sally at that meeting as to how she can go about achieving that property settlement. That longer consultation is for up to 1.5 hours and is provided at a fixed rate of $242 including GST that is discounted from our usual charge rate.

Each week during this series, we will develop on Sally and Harry’s situation and provide family law advice for each of them I ntheir particular circumstances.  Next week, we will focus on concerns that Harry has around his concern for a family law property settlement.

 

 

 

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.

Property assets: future tax considerations

Can future tax liabilities be taken in account when reaching a property settlement with your former partner? 

What place can future tax hold in determining property assets?

Can future tax liabilities be considered in Family Law proceedings?

One of the first steps to be taken following a separation is to determine the assets and liabilities of the relationship – known as the “property pool”. Before the property pool can be distributed between the parties, the items which make up the pool must be established and valued. Attributing a value and determining the associated liability of an item is important as it allows us to work out the overall percentage of the property pool the parties will receive. This task has to be done fairly, first and foremost, so that the court can be satisfied that the division is just and equitable, but also so that each party can feel satisfied with the result and be able to move on to the next chapter in their life.

So, what about future tax liabilities?

In the matter of Rogers,1 a husband argued that the possible future tax liability of the family business (being transferred from the parties jointly, into the sole name of the husband) should be paid from the matrimonial property pool. If he were successful in his argument, the value of the property pool would be reduced by some $517,000. It is important to note that at the time of the trial, the tax liability had not issued and was anticipated only – no one could be sure what the liability would amount to if it became payable.

The Court held that liabilities that were vague or uncertain (such as future tax liabilities), could not be deducted from the property pool. In this case, as the tax liability was uncertain and could change in the future, the court found that it was not just and equitable to reduce the property pool on account of the future anticipated liability.

As seen from Rogers, we now know that future tax liabilities and other uncertain future anticipated liabilities, generally won’t be considered in a matrimonial property pool.

 

Sources:

1                  Rodgers [2016] FamCAFC 68

2              Glade-Wright, Robert (2016). “Future tax debts remain out of pool” in Proctor, Queensland Law Society, September 2016 – Vol.36 No.8.

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.

Assets

How to avoid whittling away your assets pool on legal bills

Your pool of assets often holds a lot of value, so it’s important to consider how you can best maintain its worth. Here’s some key strategies to keep in mind.

Assets

How to avoid whittling away your pool of assets on legal bills

One way to avoid whittling away your valued assets pool? Settle! However, that may be easier to say than it is to action, dependent upon the issues involved and the personality profile of your former partner.

In fact, the vast majority of people will settle their family law matters. The amount that you and your former partner will spend in legal fees will be influenced by a number of factors. However, it is generally true that the longer your matters remains unresolved, the more it is likely to cost each of you and your former partner in legal fees.

Settling sooner rather then later then may well result in considerable savings to you.

It may be more difficult to settle where the issues involve your children and their living arrangements but you should still consider the areas where you are willing to compromise with your former partner.

If you having to make a property settlement with your former partner, it is useful to bear in mind what are your likely costs if you are obliged to pursue your matter through to a court action.  You should take those likely costs into account when considering what offer you may be willing to make to settle the matter with your former partner.

For more information about property settlement and maintaining your pool of assets, see here. Or, you can contact our experienced team of lawyers today for a free 15 minute consultation.

 

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.

Legal Costs

How can I keep control of my legal costs?

How can you keep control of your legal costs and ensure you’re getting the best results for your money?

Legal Costs

Keeping control of Legal Costs.

 

 

Retaining an experienced family lawyer will greatly help you through the legal process and reduce the stress that comes with separation and finalising agreements with your former partners. Family law proceedings can be costly but you should make sure that you are containing those costs where you can and avoiding unnecessary costs. Here are some things to consider to help you retain control over your legal costs:

1. Obtain legal advice from an experienced family lawyer early on about your entitlement

You do have the option of representing yourself but a family lawyer can advise you what is reasonable for you to expect, whether for arrangements for your children or for property settlement. This will go a long way towards helping you to reach an agreement with your former partner sooner rather than later. Time spent claiming more than your entitlement is likely to increase both the time taken to reach a settlement as well as your legal bill.

2. Instruct a lawyer to act for you

Make sure that you obtain advice from a competent family lawyer and have that lawyer draft and finalise your legal documents. One area of activity for family lawyers is applications to Court for people who prepared their own documents only to find that they were unworkable and that further orders of the Court were needed to correct errors that could have been avoided in the first place had a competent family lawyer been involved.

3. Be Specific

Remember that lawyers generally charge on a time incurred basis. You should certainly ask your lawyer whatever questions you may have. Be careful though not to provide them with information outside of what they request from you from time to time. You will be billed for your lawyer’s time spent reviewing material so it is important for you that time is not spent reviewing material that was not requested and which is not relevant. Remember that a lawyer is entitled to bill you for their time, including where you tell them about how you may feel about your former partner’s attitude towards you or about his or her behaviours. If your lawyer requires those kinds of details, for example for a domestic violence matter or where parenting is in issue, he or she will let you know. Otherwise, it is likely better for you to speak to a trusted friend about your feelings. You may also want to consider obtaining some counselling to help you through separation which is understandably a harrowing time for many people.

4. Prepare initial important information for your lawyer

This will save your lawyer time and time saved is money saved for you. We have set out below some information that you can prepare to give your lawyer at your initial meeting. There will be other information that your lawyer will request but being ready to provide this information will help in saving time.

  • Property Matters
        : If you have

    a property matter

      , take with you to the first meeting with your lawyer a list of all current assets and liabilities whether held in your name, in the name of your former partner or held jointly or by any corporation or trust which you own or control. It will also assist to provide at least an estimate of the current market value of those items. Don’t be concerned if you do not have all of this information at the outset. You can obtain the details of your former partner’s financial position by requiring his or her financial disclosure and your lawyer can assist you with that. You should also be ready to provide your lawyer with information about the financial and non-financial contributions which each of you and your former partner made to the relationship both at the date of commencement of cohabitation as well as during the relationship. This will include what assets and liabilities you each held at or during those times as well as financial windfall gains such as inheritances as well as information regards the role that you each took in care of the children; home duties; DIY work; home renovations and administration of your lives together.
  • Children Arrangements
      : If you are concerned with arrangements for your children, be prepared at the first meeting with your lawyer to provide details of your children’s full names and dates of birth; schools they attend & some information as to their progress as well as details of any special needs; the level and kind of care that each of you and your former partner provided for the children both during the relationship and since separation; time that the children have spent with each of you since separation; the current living conditions for the children whilst in your care and whilst in the care of your former partner; any child abuse or domestic violence (including details of reports to Police and any Protection Orders applied for or obtained) & information regards any alcohol or drug abuse by either you or your former partner.

5. Provide full and frank disclosure

Each of you and your former partner have an obligation to provide full and frank disclosure of your financial position. If you finally settle your matter without having done this, you risk having any Orders you have obtained or any binding financial agreement set aside and costs awarded against you on a future application to the family court by your former partner. Your lawyer can advise you regards the documents that you are required to disclose to your former partner.

6. Be considered about how you provide your instructions

After your initial meeting with your lawyer, where practical, give what information you can by email to your lawyer. Your lawyer can then let you know if he or she wishes to speak with you about the content of the email or requires further information. If you are calling to relate limited, concise information or to confirm a meeting, it can be more cost effective to leave a message for your lawyer with his or her assistant rather than speak directly with the lawyer.

7. Set aside your personal feelings as much as possible when negotiating with your former partner

This can be difficult to do but trying to use the negotiation or court process to punish your former partner or taking a “winner takes it all” approach to reaching final agreement with your former partner will very likely result in it taking far longer to finally settle your matter. The longer it takes, the more costly it is not only for your former partner but also for you. Doing what you can to ensure that both you and your former partner are not spending money needlessly on legal costs is going to benefit both you and your former partner and therefore your children also.

8. Be willing to compromise and settle your matter as early as possible

If your wish is to press your matter to its limits, your lawyer will follow your instructions. Sometimes though, it is better to compromise and concede on some points or to take something less in a property settlement in order to finalise an agreement with your former partner. This will be particularly so where the cost of continuing with your matter exceeds the benefit or amount of what you may be conceding. Again, this is where it is important to keep a level head. There are many examples of people who refused to settle their matter and continued on only to settle at the same level or less in their favour at a later point in time but after having spent considerably more in legal fees. There is too that once you settle your matter, you can get on with living and planning for your future. For many people, this is a reason in itself to compromise and settle early.

For more information on our legal costs and services, contact us today. Or, have a look at our range of services here.

Family Court

What Happens in a Family Court Trial?

Preparing to go to the Family Court? Find out what happens in Family Court to make sure you’re prepared.

Family Court

What happens in Family Court?

 

A trial in the Family Courts occurs only after various steps in the Court process have been completed.

This article is a general guide concerning certain of the major steps in family law proceedings in the Federal Circuit Court of Australia. The process in the Family Court of Australia is somewhat different. What happens in any particular case will depend upon its particular circumstances.

Commencing Proceedings

Unless there are circumstances of urgency (including in a parenting matter, the risk of child abuse), we suggest that you should explore other avenues for resolving family law issues before resorting to court proceedings. For example, you may have negotiations with your former partner, directly or through your solicitors or go through a mediation or collaborative law process. Generally, we recommend that court proceedings, which can be lengthy and are expensive, should be approached only as a last resort.

If you find that it is necessary to initiate an action seeking parenting orders, before filing your application, unless certain exemptions apply, you must obtain a certificate from a family dispute resolution practitioner. That certificate in then included with your application. If you do not file a certificate or an affidavit which demonstrates that the requirements for an exemption apply, the Court cannot accept your application.

There are a number of steps involved before a matter will come to trial. You have the opportunity to reach agreement with your former partner and settle your matter throughout the court process. If you do this, the Court will then issue Consent Orders which confirm your agreement with the other party. Most parties engaged in a court action will settle their matter this way. In this situation, they will not then need to go through to trial but the court action concludes with the issue of the Consent Orders.

Documents

The documents to be initially prepared and filed with the Court in property and parenting matters include:

For the person starting the Action (the Applicant)

  • An Initiating Application – This document includes any interim orders as well as the final orders that the person starting the action (the Applicant) is asking the Court to make. These orders can be orders concerning financial matters and/or maintenance or orders concerning children or both;
  • An Affidavit – This document sets out the evidence of the Applicant as to why the orders which the Applicant seeks should be made.
  • Financial Statement – This document sets out the financial information concerning the Applicant and is filed in a case where property or maintenance orders are sought.

For the Applicant’s former partner (the Respondent)

  • A Response – This document includes any interim orders and final orders that the Respondent is asking the Court to make.
  • An Affidavit – This document sets out the evidence of the Respondent as to why the orders which the Respondent seeks should be made.
  • Financial Statement – This document sets out the financial information of the Respondent and is filed in a case where property or maintenance orders are sought.

First Court Date

When the documents are filed, the Court allocates the first Court date. The time and date for this hearing is included by the Registry on the first page of the Initiating Application.

The first court date will generally be about 6 weeks after filing, allowing time for the Initiating Application to be served and for the Respondent to prepare, file and serve the response documents. The first court date may be earlier for more urgent applications.

On the first Court date, the parties advise the Court about the issues. Generally, the Court will address the following areas:h

  • Procedural Matters – The Court will make procedural orders for the further progress of the matter (such as dates by which certain steps in the proceedings are to be completed). In property cases, these orders will often include a timetable for the provision of information; the exchange of valuations and relevant documents. They will also often provide for a process for determining the assets and liabilities which comprise the net asset pool of the parties as well as for determining the value of relevant assets where value is in dispute between the parties. In property cases, the orders may also provide for conciliation conference where the parties have an opportunity to agree a final settlement or to narrow the areas in dispute. In parenting cases, the orders made at this stage may include orders requiring the delivery of a family report. This is a document which is prepared by a family report writer after he or she has interviewed each of the parents and the children (at an age appropriate level). You will find further information concerning family reports elsewhere in our blog;
  • Interim Orders – The Court will consider any interim orders that may have been sought by either party. Interim Orders may be made at that time or the Court may adjourn hearing of any argument concerning those orders to a later date.There is an opportunity on the first Court date for parties to reach agreement whether on an interim or final basis. If this occurs, the parties present the proposed consent orders to the judge requesting that they be issued whether on an interim or final basis.

Conciliation Conference

The next formal step after the first Court date in a property matter is generally the “Conciliation Conference”.

A Conciliation Conference provides the parties with a formal opportunity to negotiate and reach final agreement or to narrow the matters in issue. Even where parties cannot agree a full settlement of all matters, it may be possible to reach agreement on some issues and to clarify what issues remain in dispute.

If all issues are not settled so that the matter must proceed beyond the Conciliation Conference, further procedural directions will be made (such as dates by which certain steps in the proceedings are to be completed).

Trial

The final step in the proceeding is a trial which is held before the Judge. Each party gives their evidence and makes their submissions. The length of a trial varies dependent upon the complexity of the issues which remain in dispute at the time of trial. Unless the Judge otherwise approves, all evidence must be presented to the Court by way of affidavit.

At the final hearing, the Applicant (or his or her lawyer or Counsel) will outline the Applicant’s case and the Respondent may cross-examine the Applicant or his or her witnesses. The Applicant (or his or her lawyer or Counsel) may then re-examine those witnesses. In the same way, the Respondent (or his or her lawyer or Counsel) will outline the Respondent’s case and the Applicant (or his or her lawyer or Counsel) may cross-examine the Respondent or his or her witnesses. The Respondent (or his or her lawyer or Counsel) will have the opportunity to witnesses. You may then re-examine those witnesses.

Any independent children’s lawyer who may have been appointed may also present evidence to the Court and cross-examine witnesses. Any single experts who prepared a report may be cross-examined by the parties. For example, in a case where parenting orders are sought, parties may wish to cross-examine a family consultant may have prepared a report including certain recommendations for arrangements for children. In property proceedings, the parties may wish to cross-examine single experts who provided reports as to the value of certain assets.

Each party also has the opportunity to give a final address to the Court making final comments in support of his or her case.

Judgement

The Judge will give a decision, including reasons for the decision, following the conclusion of the parties’ respective submissions. However, the decision is often “reserved” so that judgment is not given until a later date. This is usually within three months of conclusion of the trial or at a later date where the Court has a heavy workload. Parties will be informed of the date for delivery of the decision and are required to attend at Court on that date.

Preparing to go to the Family Court can be a stressful time, but one way to reduce that stress is to feel confident and prepared on what will happen during your Family Court matter. If you need advice or are considering taking a matter to the Family Court and want legal advice, contact us. We provide free 15 minute consultations over the phone, so get in touch today.

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 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.

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.