What is Property Settlement?
When a marriage or de-facto relationship is over, the financial ties between the parties need to be finalised. For instance, if there is a jointly-owned house, it needs to be decided what happens to the house. It may be that the house is sold, or one party may be able to take it over and, if necessary, “buy” the other party’s interest.
The Family Law Act 1975 sets out the process and law regulating Property Settlement.
Often people hear stories from friends, relations or work colleagues about their experiences; because the Family Law Act deals with people on an individual basis, each matter must be looked at on a “case-by-case” basis. Every relationship and situation is different; so to know where you stand, you must obtain advice about your situation, not someone else’s experiences.
Here is a comprehensive booklet our Accredited Family Law Specialist ( who has over 33 years experience in Family Law) has written about coping with property-settlement-managing-co-parenting/
Do separating couples need to have Property Settlement?
Yes. One of the most important reasons for having a property settlement is to finalise your financial ties with your ex-partner.
If you do not finalise your financial relationship, either party may come back at the other down the track and make a claim for Property Settlement. If this happens, the Court doesn’t look at the property at the date of separation, they look at it at the date of proceedings, and, if it makes it all the way through the Court process, at the date of Trial. Therefore, there are situations where property or debt acquired after separation by one party is brought into the property pool.
Examples of this are real estate or assets acquired after separation (even with another person), increases in superannuation and savings, and increases in the former matrimonial home.
Extreme cases can be when one party inherits an amount of money or has a lottery win after separation, but prior to a formal property settlement taking place. In this situation, the inheritance or lottery win can be included in the property asset pool for the Court to consider.
There are also practical issues which need to be addressed after separation; such as, who is responsible for the mortgage payments, personal loan or credit card payments?
Before agreeing to any proposed settlement, it is most important that you get legal advice as to your particular financial entitlement (and obligations) so that when you are dealing with your former-partner, you know where you stand, legally.
How do I start the Property Settlement Process?
Whether you reach amicable agreement or not in relation to your property settlement, the best way to finalise the financial relationship is to commence the property settlement process as soon after separation as is practicable. Most matters, even when there is a dispute, do not go to a Trial before a Judge.
At Journey Family Lawyers, we normally start the process by advising you of your entitlements. With your instructions, we will then draft a letter to send to the other party to try to reach agreement without the necessity of going to Court.
Alternatively, Mediation between the parties is an option we recommend if it is likely that an agreement can be reached. However, in some cases where there is little likelihood of Mediation succeeding, commencing Court proceedings may be appropriate course of action to take because the Court process induces parties to address the issues and Mediation can follow.
Often, there are disputes about what property is in the property pool, what values are attributable to those assets and how they should be managed during the process (i.e. who should pay the mortgage, or who should live in the house before a final Property Settlement has taken place). These types of issues vary on a case -by-case basis but must also be dealt with to allow the Property Settlement process to proceed.
What is Property?
Property includes all the assets under the ownership OR control of either or both parties to the relationship.
This includes real estate, interests in businesses and companies, superannuation, shares, money in bank accounts, vehicles, boats, antiques, jewelry or artworks and so on. Also, interests or entitlements in trusts may also form part of the property pool.
Also there are some financial resources that one party may have access to that a Court can also take into account. Examples of financial resources can be interests in deceased estates and interests in family trusts.
What are the time constraints for Property Settlement?
Either party to a Marriage or a de-facto relationship (as defined by the Family Law Act), can bring an Application for Property Settlement at any time after separation.
Generally it is best to deal with Property Settlement as soon as separation occurs. At the least, separating parties ought to obtain independent legal advice as to their rights and obligations for property settlement so that they do not agree to accept less than their entitlement.
With some exceptions, separating parties must commence proceedings for a Property Settlement (bring a Court Application) within twelve months of their Divorce, for a married couple and for a de-facto couple, within two years of their separation. If you do not commence property proceedings within these time limits, you may lose your rights.
If a Property Settlement is not reached prior to these time limits, the other party may still be able to bring an Application for Property Settlement “out of time”. So, if you have not had Property Settlement, you may still be at risk outside these time limits.
How do I formalise our Property Settlement?
Often through negotiations, agreement can be reached and then the best way to finalise property is through Consent Orders. Consent Orders are Orders both parties have agreed to and which a Court or a Court Registrar then scrutinises and if they are satisfied that the proposed settlement is just and equitable, they will make the Orders
There is also an option to make a written agreement called a Binding Financial Agreement. There are many cases where these types of agreements have been overturned by the courts. It is important that they be prepared carefully and signed off properly. Quick or cheap Financial Agreements are not the answer.
How is Property Settlement calculated?
The Family Law Act and the Courts have established a four-step process to work out the respective parties’ rights and entitlements in a Property Settlement.
Broadly speaking, the process considers what is in the property pool, including all assets and liabilities; it then looks at initial contributions, contributions during the relationship, both financial and non-financial and then it looks at post-separation factors. As there are many variables, each case must be looked at on an individual basis to determine the respective entitlements.
Before agreeing to anything, we strongly recommend you see a Lawyer to go through this process to work out your position.
Do I have to go to Court for Property Settlement?
Most cases do not go to Court or to Trial. This is because the process is aimed at negotiating and finalising the property settlement without the necessity of a Court action. There is a process that encourages settlement. The result is that, even when Court proceedings are commenced, very few cases end up in a final Trial.
What happens if one party does not want to have Property Settlement?
It is not uncommon that one party wants to finalise the Property Settlement and the other party does not. At Journey Family Lawyers, we firstly write to the other party or their Lawyers suggesting a process to mediate/negotiate the Property Settlement.
If the other party refuses to mediate or negotiate or, does not do so in a genuine manner, the next step is to bring an Application for Property Settlement. This means that both parties go before the Court. The Court makes directions to clarify the issues; it generally also Orders some form of Mediation. Often this process results in an agreed settlement (and Consent Orders).
This system means that, even if a party does not want to cooperate, the Court system deals with the Property Settlement, regardless.
What should I do?
In the first instance, you need to know where you stand in relation to your entitlements and obligations. If you do not do this you will not know what to expect and you may agree to something that is not “fair”.
Also, if you do not know what your entitlement is, you cannot negotiate effectively with the other party.
Therefore we recommend your first step is to see a Lawyer to ascertain your individual situation.
At Journey Family Lawyers, at our initial consultation, we try to work out a client’s entitlement and a suggested course of action to settle the matter as soon as practicable.
Sometimes after ascertaining your entitlement, you may choose to discuss it with your former partner. If you come to an agreement, we recommend you use a Lawyer to formalise that agreement.
Other times, it might be a matter of engaging Lawyers to deal with the issues.
Each case is usually slightly different and it depends on the individual situation.
If you are in doubt with any of these matters, always consult a Lawyer.
Are you thinking of getting a divorce and want to know what the process is like? If you live in Brisbane or North Brisbane there are five key steps in the divorce process you should know about, and it’s important that you understand what each one entails before you get a divorce. This includes filing for divorce, property settlement, and managing co-parenting after separation. You should also seek legal help when you get a divorce, especially if you’ve got children and joint property.
The Federal Circuit Court of Australia has the jurisdiction to deal with divorces under the Family Law Act 1975. When granting a divorce, the Court doesn’t consider the reasons for the divorce but simply recognises that the marriage has ended due to a breakdown and the parties will not get back together.
If you have children under 18 years of age, the Court will only grant a divorce if you’ve made proper arrangements for them.
In Australia, you can apply for a divorce if you and/or your spouse meet one of the following criteria:
If you married overseas and want to get a divorce in Australia, either you or your spouse must also meet the above criteria. You also need to give the Court a copy of your marriage certificate. If it isn’t in English, you should file an English translation of it, as well as an affidavit from the translator.
When applying for a divorce, you’ll need to prove to the Court that you’ve lived separately and apart from your spouse for at least one year and that you won’t resume married life. You can, however, be separated and still live in the same house – this is also known as being separated under one roof.
You and your spouse can be separated but continue to live in the same house one year before applying for divorce. You’ll have to prove to the Court that you were separated during this time. You can find more information about this in the publication ‘Separated but living under one roof’.
The filing fee for a divorce application is $865. If you’re experiencing financial hardship or hold certain government concession cards, you may be eligible for a fee reduction. If so, you only have to pay $290.
You should file a counselling certificate. You’ll have to attend counselling to get the certificate. Contact the Family Relationship Advice Line on 1800 050 321 to arrange counselling, or Relationships Australia on 1300 364 277. If you can’t attend counselling with your spouse, you should file an affidavit. You and your spouse should also have been separated for at least one year before applying for a divorce.
The granting of a divorce doesn’t determine issues of property distribution or arrangements for children. For more information, please refer to ‘Property and Asset Settlement’, ‘Child Custody’, and ‘Co-parenting/Managing Separation with Children’ below.
If you took your spouse’s surname when you got married, you can revert to your maiden name or former following a divorce or separation.
If you were married in Australia, you should contact every organisation you have a personal account with to change your family name. You also have to provide proof of the name change, including the following:
If you were born and/or married overseas and legally changed your family name to your spouse’s with the Registry of Births, Deaths and Marriages, you’ll have to legally change your name again with them.
If you were married in Australia, you’re entitled to be known by your maiden name regardless of your marital status. You simply need to prove the link between your married and maiden names with your marriage and birth certificates.
Here are some organisations, governments, banks, and councils you’ll need to notify when you change your name and address after a divorce: They are all clickable links straight to the people you need to notify. We hope this helps you in these chaotic times.
You can easily and quickly notify organisations of your new name using a personalised name change kit.
When your marriage is over, the financial ties between you and your ex should be finalised. For example, if you have a joint property, you should decide what happens to the house. You can either sell it or stay in it and your ex moves out.
When you make a claim for property settlement, the Court will look at the property at the date of proceedings and at the date of Trial if it makes it all the way through the Court process. This means property, assets, and debt acquired after separation by either party will be brought into the property pool.
The property settlement process should start soon after you divorce or separate from your spouse. At Journey Family Lawyers, we usually start the process by advising you of your entitlements. Then with your instructions, we’ll draft a letter to send to your ex partner to try to reach an agreement without having to go to Court. If an agreement can’t be reached, we recommend mediation between you and your ex partner. If there’s little chance of mediation succeeding, however, Court proceedings will commence and mediation can follow.
Your or your ex-partner must apply to the Court for property settlement within 12 months of your divorce or within two years of your separation. If you don’t commence property proceedings within these time limits, you could lose your rights.
The best way to finalise your property settlement is through a consent order, which is an order that you and your ex have agreed to. If the Court finds the property settlement to be fair and reasonable, they’ll make the order.
If you can’t reach an agreement with your ex, you can apply to the Court for a financial order.
When negotiating a property settlement, the Court will determine the value of the assets of both parties.
When deciding how to divide assets and debts, the Court looks at:
While you can split superannuation entitlements between both parties, it doesn’t automatically convert the interests into cash. The entitlements are still subject to superannuation laws, eg. it’s normally retained until you reach retirement age.
You can split superannuation by:
If you’re seeking a court order, the Court will tell the trustee of the superfund about the order by providing them with 28 days written notice. The trustee can attend the court hearing and object to the order you’re seeking. This is called providing the trustee with ‘procedural fairness’. Once the order is made, you should give a sealed copy of the order to the trustee.
If your spouse abuses your children, you can apply to the Court to grant you custody of your children and you can ask the Courts to have your spouse leave the home by court order. If you’ll be leaving the house and your children are going with you, you should also take items that your children may need if you have time and also your special things that are of sentimental value.
If you’ve experienced domestic violence, you can apply to the Court for a domestic violence protection order to protect you, your children, and other relatives or associates from your ex.
While it’s important that your children have both parents involved in their lives, you should also make sure they’re protected from physical and psychological harm. The Family Law Act specifically says so.
Whether you or your spouse have full custody of your children, the Court will usually presume it’s in the children’s best interests if both of you have equal shared parental responsibility. In the case of child abuse or family violence, this won’t apply.
Equal shared parental responsibility means both parents are responsible for making long-term decisions for their children after a divorce or separation. This means you and your spouse should make parenting arrangements for your children, and they must be practical and in your children’s best interests. These could cover:
If it’s in your children’s best interests, you can include the following people in your parenting arrangements:
Most importantly, you and your spouse should both be included in the parenting arrangements, to the extent possible having regard to any child abuse or family violence.
There are three types of written parenting arrangements. If you and your spouse agree with the arrangements made for your children, you can record your agreement as a parenting plan or a consent order. If you disagree with the arrangements, you can apply to the Court for a parenting order. But you should try to reach an agreement through family dispute resolution before applying.
A parenting plan sets out the care arrangements for your children. It must be signed and dated by both parents. There’s no need for it to be in a specific format or witnessed.
You can change the plan any time by making another written agreement. It must also be signed and dated by both parents.
You can apply to the Court for a consent order to make your agreement legally binding. You can also apply for a consent order online. You’ll also have to complete an Annexure to draft consent parenting order. You should file this with the Court at the same time as you apply for the consent order.
The consent order should be signed and dated by a suitable witness, such as a Justice of the Peace. You’ll have to pay a $160 fee when you file an application for a consent order.
You can change a consent order by making another consent order, parenting plan, or parenting order.
A parenting order is an order made by the Court regarding arrangements for your children and your parental responsibilities. The Family Law Act sets out what the Court should consider when making parenting orders, including what’s in your children’s best interests.
A parenting order is legally enforceable, so if you disobey the order you can face serious consequences.
Depending on who has custody of your children, you can determine the amount of child support you need to pay or receive by visiting Child Support at the Department of Human Services. If you want to change a child support assessment due to special circumstances, you can complete an application form to change the assessment. Your child support will be changed if there are indeed special circumstances and the change would be fair to both parents and the children.
Sometimes if your Income is going to radically increase or decrease, you could lodge an Estimate Of Income but be careful to read the guidelines or get legal advice before you do.
When co-parenting/managing separation with children, you and your ex should always have your children’s best interests in mind. Here are some factors to consider:
Equal shared care means your children spend half the time living with you and the other half with your ex.
In many cases, however, an equal shared-care arrangement isn’t in the children’s best interests, so the Court will consider an alternative arrangement. For example, your children will live with you and spend every second weekend, plus one night each week and half of the school holidays with your ex. Other arrangements such as 4 or 5 day weekends every second week, or 8 days a fortnight with one parent and 6 days a fortnight with the other are also common. It depends on what is best for the children.
If you’ll be relocating with your children, you should get your ex’s written consent or do it with a court order. On the other hand, if your ex moves away with your children and it affects your children’s ability to spend time with you, you can obtain a recovery order requiring your ex to return your children.
Here are some tips for successful co-parenting:
With more than 30 years’ experience, Journey Family Lawyers Brisbane can guide you through the process of divorce and help you achieve a positive outcome. Our services include divorce, separation, property settlement, and child support. We’ve helped thousands of Australians through their separation, so call us now on (07) 3832 5999 for a free 15-minute consultation. You’ll get personal advice from one of our friendly specialist family lawyers to ensure your divorce goes as smoothly as possible.
What happens if you died and the house is in joint names? Do you want your ex-partner to receive the whole property?
What about your Enduring Power of Attorney? Is your ex still the person you would like to see managing you affairs if you were too ill to do so? You may need a new Will as soon as possible.
And if you die, do you want your ex to get your estate and manage your affairs? Chances are, if you have been married and have property, a Will, or an Enduring Power of Attorney with your ex partner named in it, you need to address these matters urgently.
We can sever the joint tenancy so that your house or land does not automatically go to your ex (they don’t have to sign a thing). You should consider a new Will (at least a basic one) and an updated Enduring Power of Attorney.
Also what about your superannuation? It doesn’t go according to your Will every time. All Superannuation Trust deeds are different. Sometimes they are not distributed in accordance with your Will. You need to contact your Super fund immediately if there is a chance you have named your ex as a beneficiary.
We can help you with this.
It is impossible to imagine every circumstance that readers of this page may face. Your case must be considered individually.
Contact us at Journey Family Lawyers and ask about your circumstances if you have any concerns. We prepare straight forward wills for clients in an easy, 3 step process. It takes about an hour of your time, and you can know your family will be cared for if the worst should happen.
A binding pre-nup costs time and money/ $5500 fixed fee. Don’t risk a cheap prenup. It may cost you $$$$$$$ in the long run if it can be overturned. More and more couples who are marrying or commencing to live together are wanting to have a pre-nuptial agreement to protect any assets they had before commencing living together or getting married.
WHY? there is an increase in parents and family members helping young couples with loans, guarantees or gifts because property prices are so high and the property market is hard for a young couple to get into. The Family Court has traditionally treated loans from family members with scepticism, often dividing the property between both parties even though the parents only contributed the money to help their daughter or son.
The leading case on this is:
Biltoft and Biltoft  FamCA 45; (1995) FLC 92-614, the Full Court said , “the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.”
A Pre-Nup is one way to deal with the assets as if they were just for the benefit of one party, and not enrich the spouse in the event of divorce.
Pre Nups are very difficult to draft in order to achieve the right outcome. A cheap/ rushed or do it yourself pre-nuptial agreement may be overturned more easily than a financial agreement where all precautions have been taken and all necessary documentation has been carefully done. This costs money. But it may be a good investment for peace of mind of the couple and their families.
Property Settlement . We have formulated some guidelines for a property settlement. The advice below is a general but a handy guide to first steps in a Divorce property settlement. If you need other questions answered, or need to speak to a member of our top Family Law team about your particular situation, please phone us for a free 10 minute chat, or email us on firstname.lastname@example.org for a confidential and free chat.
As if people thinking about Divorce or separation in Queensland didn’t have enough worries with the floods and the cleanup! Now we have dropping house prices and downturns in business and share prices as well. This obviously impacts on peoples’ ability to get property settlement sorted and can result in more Court cases in the Family Court. Today I thought I’d talk about some strategies to help you through and also comment on the way this has been played out in Court cases and settlement mediations throughout the past year in my firm, Journey Family Lawyers, and also what I have heard from other Family Lawyers.
In property settlement, the first step is to calculate the assets. This is easily achieved by valuing the assets or selling them! Just be careful that you never rely on old valuations where property prices are dropping, you should make sure your valuation is no more than about three months old.
If you have Superannuation, then, like shares, the value may have dropped to a disappointingly low level. This is not so easy to swallow, and the best thing you can do is accept the losses and move on. It is what it is.
Values of assets are an issue for the final stage of property settlement proceedings under section 79(4) of the Family Law Act. But what happens during the initial separation? In our article, “Separation advice: Before you go“, we talk about strategies for those early, difficult days. It helps if you think about separation in two stages, the interim, immediate stage and the long term plans and outcome that you want to achieve.
So, close your eyes and take a deep breath. I want you to visualise how your life will be after you have sorted this mess of separation out. Some people see themselves in a rented unit or house, others see themselves in their own home, bought with the proceeds of sale of the joint property, and still others plan to buy their partner out of the current joint home.
Whichever plan you have, you can see that it won’t be achieved instantly, no matter how amicable your settlement will be and however friendly your separation is. In the current housing market, you can expect to have your house for sale for over 100 days before it may sell. You may need to consider reducing prices. Don’t worry too much, because you will be presumably buying your new property in the same low market.
But, you need a short-term plan as well. One that can keep you comfortable and secure until the finances are untangled. This is the tricky one. So, a couple of FAQ’s.
So get yourself settled in a way that you can afford, with the things such as insurances and your personal items safely with you. Don’t upset your partner unnecessarily. Make sure that between you both all the bills are still being paid. Be aware that this is just a holding pattern, and don’t let the emotion of the break-up make you foolish about these things.
Think about what you want to achieve in the future with your settlement. Reality check this with friends and then give your lawyer the goal posts. Hopefully a friendly civilised property settlement will be yours within the year!
Our firm knows the pressure that unresolved property issues brings to your daily lives and we will do everything we can to get a speedy resolution through either mediation, negotiation or if necessary, strong and decisive representation in Court.
I hope this helps, email me or send a question to Journey Family Lawyers at email@example.com. Someone will get back to you usually within a couple of business hours for free. Or phone us on one of the below listed numbers for a free 10 minute consultation
The Journey Team
Following separation people wish to make arrangement for property settlement and remember having heard somewhere that superannuation is now considered property for the purposes of family law property settlement. Sometimes people wish to reach an agreement about splitting their superannuation interests but do not know how to go about doing this. The purpose of this fact sheet is to provide you with some general advice about how the Family Courts deal with superannuation interests.
The superannuation splitting law treats superannuation as a different type of property to things like houses, cars and bank accounts. It lets separating couples value their superannuation and split superannuation entitlements, although this is not necessary for all people to do so. Each case is unique.
It is important to understand that splitting superannuation entitlements does not convert those interests into a cash asset – the entitlements are still subject to superannuation laws (for example, it is usually retained until retirement ages are reached). In simple terms, if you wish to receive part of your partner superannuation this does not mean you can readily convert it into cash. Only in very limited circumstances will a super fund allow you to do so, and only then, only a limited amount (known as “hardship grounds”). You must check with your Journey family law solicitor first before thinking you can access any part of your partner’s super after property settlement.
Separating couples may either:
A formal written agreement requires that both you and your former partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made, you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy.
Journey family lawyers do not recommend that anyone enter into a “superannuation agreement” as there are many dangers and pitfalls involved in doing so. Ask your Journey family law solicitor about this if you require further advice.
Even when an application is made to a court, it is possible to reach an agreement at any stage without the need for a court hearing, and we encourage you do to so. Journey Family Lawyers has a high success rate and reaching settlement in property matters thereby avoiding costly trials. You should ask your Journey Family Law solicitor about these options.
You need to get information to value the superannuation interests of both of you. You should provide the following forms to the trustee of the superannuation fund (we will usually do this for you):
The superannuation fund may (and often does) charge a fee for providing this information, and this is paid when you send the forms. The Superannuation Information Kit provides the information and the forms you need. To obtain a copy of the Superannuation Information Kit go to www.familylawcourts.gov.au or call 1300 352 000, or ask your Journey Family Law solicitor.
The information from the trustee may be enough to value the superannuation. However, the valuation of some superannuation interests can be complex. An expert may need to provide a further valuation. This often occurs when one of you works in the public sector and is a member of a defined benefit scheme. The valuation process for such schemes is often very expensive. You should ask your Journey Family Law solicitor about valuing superannuation.
There are different types of superannuation. The superannuation splitting legislation sets out methods for valuing most types of superannuation, but there are exceptions, including:
You have the option of either entering into a formal written agreement or obtaining a court order (by consent).
Obtaining a court order (our preferred method)
People obtain court orders about the division of matrimonial property in two ways:
If you and your former spouse have reached an agreement about property settlement (and superannuation), then a Form 11 Application for Consent Orders should be filed in the Family Court, accompanied by a consent order (often referred to as “Minutes of Consent” or “Terms of Settlement”) recording the agreement. The orders can then be made in chambers (by a judge alone) without either of you or your Journey Family Law solicitor attending court.
NB. In some rare circumstances the Court will require further information from the parties. Just because you have prepared Consent Orders and a Form 11 does not necessarily mean that it is the end of the matter. A court will only make the Orders you seek if they are “just and equitable” and are enforceable by law. The wording of superannuation splitting orders is complex and must meet strict legislative requirements. If your orders are not worded correctly they will be rejected by the registry and you will find yourself having to seek the advice of a solicitor. It is always wise to seek legal advice first, and is you wish to have super-splitting orders made, have your Journey Family Law solicitor prepare them for you to avoid delay and unexpected expense.
Even if you start proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further, provided that the Court is satisfied that the orders you seek are “just and equitable”.
Either way, you need to file an Application with the Court.
To start a case in the Federal Magistrates Court we must prepare for you and file an Application, an Information Sheet and a Financial Statement. The other party will file a Response and a Financial Statement.
The information from the superannuation fund trustee will help us to complete the court forms. You must disclose all superannuation, even if you do not intend to split superannuation payments.
If you are seeking court orders about superannuation, we must tell the superannuation fund trustee about the orders you are seeking. We must ordinarily provide the Trustee with 28 days written notice of the orders we seek on your behalf. The trustee must have an opportunity to attend the court hearing and object to the orders that you are seeking. This is called providing the trustee with ‘procedural fairness’.
Once the superannuation order is made, whether by consent or after a hearing, it is important to provide a sealed copy of the order to the trustee immediately.
You should get legal advice from us before deciding what to do. Our team of solicitors can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Our role is to help you reach an agreement with your former partner without going to court. That is always our first preference, but in some cases, it is simply not possible for parties to agree and if that is the case, we will assist you to prepare your court case.
This website is for people who are facing Divorce or separation and want to find out as much as they can to help them through. My firm is Journey Family Lawyers, who are specialist Family and Divorce Lawyers in Queensland. They have their own website at www.journeyfamilylawyers.com.au. This is a divorce blog where you can comment and ask questions about your marriage property settlement or children custody problems.
I hope you can find the answers to your divorce issues here, if not please email us at firstname.lastname@example.org or comment on the blog or phone us on (07) 3832 5999 and we will get back to you so you can know where you stand. Don’t forget we offer free 10 minute consultations by phone too, or one hour for $143.00. I am still slogging away on my book, Divorce a new users guide, and will post bits of it from time to time. The good news is that the book should be ready for publication mid 2013, if I can keep up the pace of writing, that is!
Regards Lynette Galvin
The first is that the parties assets are to be calculated. This includes all Superannuation, and the assets of one party or both parties, whenever it was acquired.
The second step is to assess contributions to those assets before, during and after co-habitation. (Section 79 of the Family Law Act)
The third step is to assess the parties future needs under section 75 (2)
And after adjustments for each of contributions and future needs, the fourth step is to assess whether the proposed Orders are fair and reasonable and it is here that the Court looks at such things as the proportions of actual property and Superannuation that a person receives.
So the first thing that a Court will do, or for that matter, Solicitors who are negotiating a property settlement must do, is determine the value of the assets of the parties.
Often people make claims that the furniture “in the other person’s hands” is worth tens of thousand of dollars whilst the person who has the furniture will point out that the furniture is second hand, not of top quality in the first place, and would probably only fetch $2,000 or $3,000 in a garage sale. The first person is usually valuing the property or replacement value whilst the second person is valuing the property on its current sale value. Who is correct?
The Family Court seeks that furniture and chattels be taken into account at their current sale value, or second hand value and not at the replacement value so the correct value is the garaging sale or trading post or auction value.
Many times the value of the home is in dispute between the parties and they will each come to their Solicitors with confliction Real Estate Agents Appraisals that may differ by tens of thousand of dollars. Of course, the true value of a property is what someone is prepared to pay for it but if the property is not to be sold then it is important that a figure be reached at a valuation with which both parties can be content.
One way to do this is to obtain a number of valuations from reputable Real Estate Agents in the area, and take the average of all of the valuations as the value of the home for negotiation purposes. This can be very effective if, for instance, two appraisals are obtained by one party and two appraisals by the other party.
Another more costly way is to obtain a formal written valuation by a Registered Valuer. Either of these methods will determine the true value of the property to form the basis of negotiations.
Superannuation is always difficult to value similarly as it often has a much lower current value then its value will be at retirement age. There is a temptation for the person who does not have the superannuation to quote the figure that the other person could expect to receive at, say, 65, as the value of the superannuation. The flaw in this argument would become apparent if you consider that the person who currently earns the superannuation is, say, only 45 and has to live another 21 years, earning at the current rate, to be eligible for the superannuation at age 66.
Establishing the real value of superannuation can be extra difficult when superannuation comes with many classifications. For instance, there may be an unrestricted, unpreserved amount which can be accessed by the person immediately whether or not he or she has retired from work and whether or not he or she has obtained the age of 55.
There may also be a component that is restricted non-preserved which may be accessible by the person upon their leaving that position but before they attain the age of 55.
Then there is the restricted amount which is preserved until various ages, maybe 55 or 65 and can only be taken upon retirement.
With all of those issues at stake, you can see why superannuation can become fraught and difficult to deal with.
There are forms available for your Solicitor to use to obtain information direct from the superannuation fund so as not to have to rely on the other party to provide details of the superannuation fund themselves. The forms, however, do require the other person’s signature as an authority to enable you to write direct to the super funds. Alternatively, we have a separate article on superannuation which has additional information.
It is fair to say that a true estimate of your likely award in Court or in negotiation of property can only be given when the values of the various items of property and the details of the superannuation have been fully canvassed.
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 came into force on 5 December 2008. This Act creates a new Part VIIIAB of the Family Law Act and amends a number of other related Acts. Financial matters arising out of separation of de-facto couples can now be resolved in a Court exercising jurisdiction under the Family Law Act.
A person is in a de facto relationship with another person if the persons are not legally married to each other, they are not otherwise related by family, and having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
A de facto relationship can be between members of the opposite sex or members of the same sex.
The circumstances of the relationship may include the duration of the relationship, common residence, a sexual relationship, financial interdependence, care and support of children, and public reputation (s. 4AA). There is no threshold requirement of cohabitation.
This is a broad test. In the context of child abduction proceedings, the Full Court of the Family Court has interpreted similar (New Zealand) provisions widely.
A Court may make an order or declaration if the Court is satisfied that the period, or the total of the periods, of the de-facto relationship is at least two (2) years, or there is a child of the de-facto relationship, or if failure to make the order or declaration would result in serious injustice to the applicant (s. 90SB).
The Court may make such orders as it considers proper for the maintenance of a party (s. 90SE (1), for a declaration of an interest in property (s. 90SL (1)) and for alteration of property interests (s.90SM (1)). Part VIIIB (Superannuation Interests) is extended to apply to a de-facto relationship.
Third parties may be included in de facto property proceedings (in a similar way to the existing Part VIIIA).
The Court may make an order or declaration about the existence or otherwise of a de facto relationship (s.90RD).
Proceedings must be commenced within the standard application period, which is defined as two (2) years from the date of separation. Leave may be granted for a party to apply after the end of the standard application period, if hardship is established.
Not all States have referred power to the Commonwealth. For parties to be eligible to apply, they must be ordinarily resident in a participating jurisdiction. Presently, this includes all States and Territories except South Australia and Western Australia.
If the parties are ordinarily resident in these States, then the laws of those respective States still apply.
In Queensland the Family Law Act will apply to the exclusion of Part 19 the Property Law Act 1974 (Qld). Queensland Courts will have no jurisdiction. (s.90RC).
For a Court to have power to make orders for alteration of property interests and for maintenance of a party, then either or both of the parties to the de facto relationship must meet the geographical requirement.
The requirement is that either or both of the parties were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (or when they separated), and both parties were ordinarily resident in that jurisdiction during at least a third of the de facto relationship.
Financial Agreements can be made before, during and after the de-facto relationship (s90UB, 90UC, 90UD). Financial Agreements are binding if the requirements in s. 90UJ are met. Those requirements are precisely the same as those for Binding Financial Agreements for Married couples.
Agreements can be set aside (in the same way as present Binding Financial Agreements). A Court will apply a strict interpretive approach and strict compliance requirements should be applied. Failure to comply with the requirements will result in the agreement being set aside.
Recognized Cohabitation and Separation Agreements made under Part 19 Property Law Act (prior to the commencement date) remain binding provided that a State Court could not make an order that is inconsistent with the agreement.
Parties to a de facto relationship that broke down before commencement may choose for the new provisions to apply. Such a choice can be made if (a) no final order in respect of the property or financial resources of the de-facto parties, (b) no Recognized Agreement made pursuant to Part 19 Property Law Act (Qld) has been entered into, or (c) that such an agreement has been entered into but ceased to have effect without any property being distributed or maintenance being paid.
The choice must be made in writing, signed by both of the parties to the de facto relationship, and each of the parties was provided with independent legal advice and there is a certificate evidencing such advice.
There are no provisions in the Family Law Act that could enable a State Court to compel a party to ‘opt-in’. If proceedings have commenced (and provided the time limitation has not yet expired) both parties could agree to discontinue the State Court proceedings and re-commence in the Family Court or Federal Magistrates Court.
Where parties have separated after the commencement date, recognized separation agreements under the Property Law Act will be ineffective. The only options are to either prepare an agreement that meets the requirements of the Family Law Act, or by way of consent order pursuant to the Family Law Rules.
If a recognized agreement is in existence, at least in Queensland, it will not have been able to deal with the maintenance of a party, or parties, to the de facto relationship. Fresh agreements might be required to cover the possibility of a maintenance claim.
If the time limit has not yet expired, spousal maintenance claims might be able to be made even where there is a final division of property. In any event, a Court may make such orders for maintenance of a party, including lump sum orders, and orders for transfer of property to meet a maintenance liability, as it may consider appropriate.
Superannuation will be treated as property, and can now be split, either by agreement or by Court order. The full range of options previously available to Married couples can now be used, including provision of fixed based amounts, percentage splits, and splits during the payment phase. This includes self-managed superannuation funds. Orders can now be made binding on Third parties.
The Jurisdiction of the Courts in Bankruptcy will be able to be utilized.
Most importantly, parties will have access to the Rules and Procedures of the Family Court of Australia and Federal Magistrates Court of Australia, with the benefit of individualized case management, early intervention dispute resolution processes and pre-action proceedings (for applications to the Family Court of Australia).
De facto couples with both parenting and property disputes will be able to have all matters determined in one Court. In most cases, this will mean a significant cost saving for litigants.
To assist in interpretation of the amendments, the explanatory memorandum to the Bill (as it was), and the Bill digest are both available on the Australian Parliament website