Separation and divorce require a formal resolution of financial matters between the parties. Find out how we can achieve outcomes without going to Court.
We are among the most experienced Family Solicitors in Logan & Brisbane areas and can provide you with the advice and information you need to make informed decisions about property settlements and how to document outcomes with consent orders or financial agreements. We provide straight forward and precise advice in family law property matters.
You should bear in mind that because of the very nature of family law (including defacto matters and recognised relationships) each case will be determined on its own facts by the relevant Court under the Family Law Act.
The Family Law Act now allows defacto couples to have the same rights as married couples, allowing them to enter into financial agreements prior to entering a defacto relationship, during the relationship and when the relationship ends. Superannuation splitting laws and spouse maintenance rights and responsibilities also apply to defacto couples.
WHAT TO DO IN PROPERTY DISPUTES?
First of all seek advice and don’t become overwhelmed. Make sure that your actions are reasonable so as not to lead into serious conflict (which might lead to unnecessary Court proceedings). If you are contemplating separation you should seek advice from a competent family law solicitor.
If you and your partner are not able to reach an agreement about how to resolve your property issues you should seek legal advice in relation to your particular circumstances. Be wary of advice to commence court proceedings without first considering your other options. Alternative dispute resolution should be the first port of call in most cases, except where family violence and/or abuse of children or urgent steps to protect property would prevent that approach.
If you have reached an agreement regarding property issues you should formalise the agreement to ensure that all financial issues are finalised between you in accordance with the provisions of the Family Law Act. This can be achieved by way of Consent Orders or a Financial Agreement. Without a legal end to property issues and spouse maintenance litigation in the Family Court will remain a possibility even if you are divorced.
We recommend dispute resolution methods including:
and collaborative law;
as the preferred methods be undertaken to attempt to resolve the issues in dispute.
Mediation is a process in which an independent person (the mediator) assists the parties to negotiate and make mutually satisfactory decisions regarding the issues in dispute, with a view to the issues being resolved by the parties themselves rather than a decision being imposed by a court. The advantages of mediation include: –
the parties participating in the decision-making process and determining the outcome;
less damaging to a future relationship or communication being maintained between the parties;
significantly less expensive than contested court proceedings.
In Collaborative Law, both parties and their lawyers formally agree to stay out of the court system to solve disputed property issues. Both lawyers are contractually bound to stay out of court, as they cannot represent their clients in court should negotiations fail. In Collaborative Law, the lawyers work together as problem solvers for the parties. In the Collaborative Law process, the parties control the result, the timing and the costs. The Collaborative Law process is private and confidential. It may be less expensive than going to court.
In Arbitration the parties will receive a binding decision from an arbitrator who is usually a former judge, experienced barrister or solicitor. Arbitration, whilst an alternative method of dispute resolution is similar to going to court but the matter is decided by an arbitrator rather than a Judge. Once of the advantages of arbitration is that it will take less time to get a decision and generally should be less cost.
We can provide mediation and collaborative law services within our firm and represent you in an arbitration procedure. At your first appointment we will provide you with more information about how to resolve those family law matters that .
The Family Law Act imposes important time limitations as follows:
In the case of Defacto Relationships – Any applications to Court for property or spouse maintenance must be commenced by filing an Application within 2 years of the date of separation.
In the case of married couples – Any applications to Court for property or spouse maintenance must be commenced by filing an Application within 12 months of the date of divorce.
If proceedings are not commenced within the required time frame you may forever lose your rights under the Family Law Act, although in limited circumstances you may apply to the Court to commence proceedings out of time. Please note that we cannot commence proceedings without your instructions to do so.
What the Court takes into Account
In an application for property settlement, the Court may alter the interests of yourself and your former partner in any property. An Order made altering the interests in the property must be “just and equitable”. The adjustment can include giving an interest in the relationship property to either you or your former spouse even though there was no previous interest in that property. In determining what Orders should be made, the Court is required to take into account a number of factors set out in the Family Law Act 1975 and which can be grouped into two (2) major categories:-
Contributions made by each party to the acquisition, conservation and improvement of the property;
The relative financial strengths and weaknesses of each party.
There are four general steps involved when the Court considers an application for property settlement and these are:-
Ascertaining what the property is at the time of the trial by identifying and quantifying the value of the property, which includes superannuation benefits. The Court will have regard to the whole of the property of the parties when considering a property settlement;
Determining each party’s respective contributions to the property and to the welfare of the family. In determining the respective contributions made by each party to the acquisition, conservation and improvement of the property, the Court is required to take into account both financial and non-financial contributions made, as well as contributions made to the welfare of the family (including any contribution made in the capacity as home maker or parent).
The contributions towards the acquisition, conservation or improvement of the property are taken into account whether these contributions were made before, during or after the end of the relationship and whether the property belongs to either or both of the parties.
Where one party has introduced significant assets into the relationship then that party will generally receive substantial credit for that initial capital contribution and this is particularly the case in respect of relationships of short term.
The Court will also look at the financial and non-financial contributions made during the relationship to the acquisition (eg: purchase price) and to the conservation (eg: mortgage payments, maintenance and repairs) and to the improvement (eg: extensions and renovations) of the property.
Non-financial contributions may include the value of a particular skill or expertise which one party has used in acquiring or building up the property assets.
Any gifts made to one party during the relationship by a parent or relative would be regarded as a direct financial contribution made by that party to the relationship.
The Court will decide on the facts as to the contributions of each of the parties in respect of the family and in particular any contributions made in the capacity of home maker or parent;
Determining the respective needs and resources of each party under the Family Law Act 1975 by looking at “any fact or circumstance the Court considers the justice of the case requires to be taken into account”, as well as the age of the parties, health, income, property and financial resources, care of the child of the relationship who is under the age of 18 years, responsibility of either party to support another person, earning capacity, eligibility for a pension allowance or benefit, standard of living, the length of the relationship, and the extent to which the relationship has affected the earning capacity of each of the spouses, cohabitation with another person, payment of child maintenance.
The fourth and final step is for the court to determine whether in all the circumstances it is “just and equitable” to make the orders for property settlement which are proposed from the operation of the previous three steps. This is the stage where the court considers the mix between actual assets and superannuation in the division of the property.
Consent orders are made by the Family Court where both parties agree on how to divide their assets. An application for consent orders is filed together with the proposed terms of settlement (orders) and the documents are considered by a Registrar of the Court in chambers (in their office). If the Registrar is satisfied that the orders are “just and equitable” they are sealed and issued.
We provide fixed fee services for consent orders. At your first appointment we will be able to advise you of the costs involved
Financial agreements are not filed in court but are private contracts which may involve agreements which are not necessarily “fair” and would not pass the just & equitable test the Court must apply under the Family Law Act. Both parties must be represented by lawyers and their lawyers must sign a statement of advice, they should also provide a written advice. Financial agreements must also comply with various requirements of the Family Law Act.
Contact us about your Property Settlement and any resulting transfers and superannuation splitting orders:
Advice on your legal position find out about our Common Sense Divorce approach;
Mediation of your property dispute issues;
Advice on how to deal with your family law (property and children) issues through the Collaborative Law process.
Advice on how to minimise and/or remove the possibility of future litigation by way of Consent Orders or a Financial Agreement.
Prenuptial Agreements and cohabitation agreements, and Financial Agreements during a marriage.
After all your financial future will depend upon the quality of the professional assistance you obtain. Where property and Custody of Children are in dispute it is imperative that you are properly informed of all of the methods of resolving the issues in dispute.
We are committed to obtaining the best possible outcome for you and your family through dispute resolution methods unless Court proceedings are indicated as being necessary by the facts of your particular case.