Do you need help with Property Settlement Brisbane? Prior to separation or soon after, you should obtain legal advice about your rights for the division of a Property Settlement. This will be important going in to any negotiations for settlement of property with your former partner.
You should be aware that even when you negotiate an agreement with your former partner, the Family Law Act 1975 applies in determining entitlements for the division of property for both married couples as well as for de facto (including same sex) couples who separate after 1 March 2009. It is also important to realise that divorce does not finalise property (or parenting) issues which must be addressed separately.
Finalising Your Matter
It is important that you formalise your agreement regarding the division of property in order to protect yourself against future claims that may be made by your former partner.
We will work towards your reaching an amicable agreement with your former partner for the division of property and having that agreement finalised by the issue of Consent Orders. We prepare the Application for Consent Orders which are then filed without the need for you to make any appearance in Court. If it is not possible to reach an agreement that achieves an acceptable outcome for you, we will recommend Court action and proactively represent your interests at Court.
How the Law Determines Property Entitlements
We consider here how a Court determines property entitlements under the Family Law Act 1975 since this legislation will apply whether or not you are involved in a Court action. There is no precise mathematical formula that applies to work out how property will be divided. Instead, a Court has a discretion and considers the following factors.
Identifying the Asset Pool
The legal and equitable interests of each party in property must be identified. It is all assets and liabilities of each party (including real property; furniture and chattels; cars; boats; shares; other investments; business interests and superannuation) which are considered whether they are held or controlled by you and your partner jointly or separately. The value considered is current value.
Just & Equitable to Make Orders
A Court must be satisfied that it is just and equitable to make an Order altering the property interests of parties. This requirement will often be satisfied by the fact of separation of the parties. It is not a requirement however that parties are separated for the Court to be satisfied that it is just and equitable to make an Order.
Contributions & Future Needs
Once the Court has determined that it is just and equitable to make an Order altering the property interests of parties, the Court then considers a number of factors in order to determine what Order it is appropriate to make. Those factors include:
The Court will determine the parties’ respective entitlements in terms of a percentage of the net asset pool and will then consider whether it is just and equitable in all of the circumstances of a particular case to make the proposed Orders.
These factors apply to work out the entitlement of each of you and your former partner for the division of property whether you reach a negotiated agreement with your former partner or are obliged to have your case considered by the Court.
Remember the Time Limitations
For married couples, any Court action seeking property Orders under the Family Law Act 1975 must be started within 12 months of the date upon which a Divorce Order takes effect. After the expiration of that period, a Court action may only be started with the leave of the Court or the consent of both parties to the marriage.
For de facto (including same sex) couples, any Court action seeking property Orders under the Family Law Act 1975 must be made within 2 years of separation unless the Court is satisfied that hardship would be caused to the party or a child if leave were not granted, or if an application is for maintenance, that, at the end of the standard two year application period, the person is unable to support themselves without an income tested pension, allowance or benefit.
Eligibility
For de facto (including same sex) couples to be eligible to bring a matter before the Family Courts, they must have been living together for at least 2 years unless there is a child of the relationship; a party made substantial contributions to the other’s property and serious injustice would be caused if Orders were not made or the relationship is or was registered under certain State law. There are also some residency requirements which you can read about in our blog.
We prefer to meet you in person but are happy to have a telephone consultation if this suits you. At an initial consultation, we will take some particulars from you so that we can provide you with advice about the likely outcome at family law for your particular circumstances and estimated costs if you wish to proceed further.
Free Phone Consultation: (07) 3506 3651
