Family Law - Property Settlements - First Steps
Date: October 20, 2011
Authors: Angelita Manlangit LL.B.
A marriage or relationship breakdown can be difficult and emotinally exhausting. It involves a lot of decision-making and adjustments whether for child custody, property settlements or maintenance orders. This is the reason why the Family Law Act has numerous provisions that can help support parties in the division of their assets.
First Steps
It is important for the two parties to first attempt to settle to an agreement before applying for property orders. Financial matters to deal with after a marriage or relationship breakdown are:
The division of assets such as shares, cars, real estate, savings, furniture, jewellery and effects (property/divorce settlement),
- The division of superannuation
- The party who would provide financial support for the other party (spousal maintenance),
- The arrangements in regards to the financial support of the children (child support)
With these to dicuss, both parties will undergo “pre-action procedure” that includes dispute resolution. However, in cases that involve family violence, urgency, non-participation of the other party to negotiate or fraud, the Court may decide that it is no longer appropriate for pre-action procedures to take place.
The application for property orders must be within 12 months of the parties divorce becoming final. It can be filed in the Family Court or in the Federal Magistrates Court. In order to formalise a property settlement, one can either have:
- Financial Arrangements – also known as prenuptial agreements, binding financial agreements or post nuptial agreements. This covers division of property, finances and debts after a marriage breakdown, superannuation, spousal maintenance and other incidental issues.
- Consent Orders – written agreements that are formalised and approved by the court that are legally binding. It can deal with the transfer or sale of property, the splitting of superannuation and spousal maintenance.
Four Key Factors in assessing property settlements
- The Court will check the net asset pool of both parties. Net asset pool is the total value of all assets owned by both parties. This covers anything acquired before or during the marriage, as well as after the separation. With all of these, checking net asset pools can be complicated and requires many factors to be taken into consideration.
- The Court will evaluate the contributions from both parties (financial and non-financial). There are many of contributions that the Court considers: (1) financial contributions, (2) non-financial contributions (being a homemaker or carer of children), (3) gifts, bonuses and inheritance, and (4) initial contributions (assets acquired before marriage).
- The Court will evaluate the future needs of both parties. Factors that take into account by the Court are: (1) Age and Health, (2) Capacity to earn money, (3) The property and assets of each party, (4) New relationships (and new financial situation), (5) Future parenting responsibilities (care and support).
- The Court will evaluate the rational effect of the proposed property settlement, if it is “just and equitable” to bother parties.
Family Law - Binding Financial Agreements - Pre-Nuptial Agreements - Will a court enforce a BFA that is a bad bargain for one of the parties?
Date: January 11, 2012
Author(s): Patrick Mulligan B.A., LL.B.
This case concerned a couple that entered into a biding financial agreement (BFA) after they separated. They were married for 17 years. They entered into the BFA after they separated in 2007. The relevant clauses of the agreement provided that the home was estimated at $750,000 provided that repairs were undertaken. The husband had to undertake the repairs which were estimated at around $31,000.
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Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
Family Law – What can I do if my partner has given away or transferred property during the relationship, separation or divorce?
Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
The purpose of this article is to explain the court’s power to set aside transfers of property and transactions by a party to a relationship. This power is available to the court pursuant to s106B of the Family Law Act 1975. A claimant may apply to the court for an order under this section where a proposed or actual transaction or disposition of property by a party will have the effect or likely effect of defeating property and maintenance related orders under the Family Law Act 1975.
Family Law - Hidden Assets: How can the law protect you?
Date: November 08, 2011
Author(s): Angelita Manlangit LL.B.
Obtaining a property settlement due to divorce can be a very complicated procedure which often causes great angst and stress amongst all parties involved. Our Family Law Solicitors understand that as a result, people are often led to hiding their assets, in order to ensure that their former partner does not receive a just and equitable amount. However, this is a breach of their statutory obligations to make a full and frank and disclosure and our Family Law Solicitors will ensure that all information are brought to the table by your former spouse.
Family Law - Property Financial Statements
Date: November 08, 2011
Author(s): Angelita Manlangit LL.B.
In financial cases, parties are required to file a financial statement with their initiating application. A financial statement contains a detailed summary of an individual's financial condition. The parties must also file an amended financial statement later in the proceedings if their circumstances change.
Family Law - Property Settlement Proceedings
Date: November 08, 2011
Author(s): Angelita Manlangit LL.B.
The parties to the marriage are under a legal obligation, under the Family Law Rules, to try and resolve and differences between them by way of an alternative dispute resolution (ADR). ADRs may include negotiation, family counseling, conciliation or arbitration. In the event that ADR is unsuccessful, try writing to the other party, setting out your claim and perhaps making proposals for settlement.
Family Law - The Legal Obligation of Full And Frank Disclosure
Date: November 08, 2011
Author(s): Angelita Manlangit LL.B.
As at 1 June 2009, the Family Law Rules provides that each party to a case has a duty to the Court and to each party to give full and frank disclosure of all information relevant to a case, in a timely manner. Such obligation is of particular significance to proceedings relating to spousal maintenance; declarations of interests in property; alterations of property interests; setting aside property orders; maintenance agreements and their termination.
Family Law - Property Settlements - The Four Step Process
Date: October 21, 2011
Author(s): Angelita Manlangit LL.B.
Decisions associated with property settlement can be complicated and exhausting. To guide the parties who undergo property settlement, there are four steps process to follow.
Family Law - Duty Exemptions in New South Wales for Transfers Between Partners
Date: May 18, 2011
Author(s): Mark Bostock LL.B., B.Bus.
Couples may wish to transfer property between them to various reasons. They may be motivated by tax minimisation, risk management, family breakdown or other reasons. Many transfers attract duty and any decision as to transferring applicable assets should be made with parties being mindful of the potentially substantial duty liability that may emerge.
Family Law - The legal rights of de facto couples versus married couples
Date: December 20, 2010
Author(s): LAC Lawyers
Since June 1999 the term De Facto has been used to describe the relationship between the two adults (over the age of 18 and including couples of the same sex) who...
Family Law - The importance of documents and the process of discovery and disclosure
Date: December 08, 2010
Author(s): LAC Lawyers
It is a fundamental principal in family law that the process of discovery and disclosure of all material that is relevant to the case be made to ensure a fair outcome.
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Date: October 07, 2010
Author(s): LAC Lawyers
When you first see your family lawyer, there’s a jumble of information you need to provide and even more information for you to receive. You’re understandably emotional and perhaps confused about what lies ahead for you.
Family Law - Binding Financial Agreements Under the Family Law Act 1975 (Cth)
Date: June 15, 2010
Author(s): LAC Lawyers
If you’ve recently entered a new relationship, have been in a new relationship for a time, or are considering ending your relationship, you should consult a lawyer to learn your rights and obligations under the Family Law Act 1975 (Cth) (‘the Act’).
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Date: June 15, 2010
Author(s): LAC Lawyers
Whether your new spousal relationship is a married, de facto or same sex relationship; at the beginning, consideration of the law is the last thing on your mind.
Property Law - Family Law - The concept of joint land ownership when family relationships break down.
Date: May 17, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Joint land owners hold land either as joint tenants or as tenants in common. Joint tenancy is far more common. Through this method of ownership, the interests of one spouse or partner are deemed by law to flow automatically to the surviving spouse or partner irrespective of whether the deceased spouse or partner has left a will or other testamentary document.
Family Law - Considering Seperation? Here are your next steps
Date: March 31, 2010
Author(s): LAC Lawyers
Whether you are married or have been living in a domestic relationship, if you are considering separation you should also consider your family law obligations and entitlements before you finalise the decision to separate. At such a difficult and crucial stage in your life, it will be important for your transition to a new life to be as calm and smooth as possible.
Family Law - The Competing Issues of Bankruptcy and Family Law
Date: January 13, 2010
Author(s): LAC Lawyers
Family law property settlements or applications for spousal maintenance may be further complicated where one spouse is bankrupt or considering bankruptcy. In these circumstances, a conflict clearly arises between the competing interests of a trustee in bankruptcy and the separated non-bankrupt spouse in determining how property should be distributed between the parties.
Family Law - De Facto Spousal Maintenance
Date: August 17, 2009
Author(s): LAC Lawyers
A recent development in de facto family law has seen an expansion of the eligibility of parties in Australia to spousal maintenance. Pursuant to the Family Law Amendment (De Facto Financial Matters and other measures) Act 2008 (Cth), a person of a de facto relationship that separated on or from 1 March 2009 may be entitled to receive spousal maintenance.
Family Law - Assets - disputes
Date: August 04, 2009
Author(s): LAC Lawyers
Australasian family law cases concerning a party’s initial contributions, or separate property, brought into the relationship appear far from clear when settlement is litigated in court.
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Date: May 19, 2009
Author(s): LAC Lawyers
Separation is a major step for everyone. It's a time when you need help and information. Most people admit feeling the worst they have ever felt in their life. Should you and your partner decide to separate, it is vital that certain immediate decisions will need to be made in relation to the children and your finances. It is at this stage that you should seek legal advice about your situation, and here at LAC Lawyers, our experienced solicitors can guide you through this sometimes traumatic and cumbersome process, as painlessly as possible!
Family & De Facto Law - Changes in De Facto Law and its effects on Property
Date: March 07, 2009
Author(s): LAC Lawyers
In legal terms, a de facto relationship is essentially a relationship between two individuals who are not married and who live together as a couple on a ‘genuine domestic basis’.
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Date: February 04, 2009
Author(s): LAC Lawyers
Many people believe that they can undertake a Divorce on their own without legal assistance. However cost effective this may seem most Divorce cases are complicated involving children, property and other financial matters. At LAC Lawyers we will provide you with a quality and efficient service designed to ensure your Divorce and other related matters become final in the eyes of the Court.
De Facto Relationships, A New South Wales and Victorian Perspective
Date: December 31, 2008
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Originally de facto relationships in NSW were governed by the De Facto Relationships Act which was replaced in June 1999. The term “de facto relationship” has been significantly widened to cover all relationships between two adults over the age of 18 years who live together, are not married and who are not related to each other. This definition now covers gay couples providing them with a level of protection which had not existed previously.
De Facto relationships and property settlements
Date: December 07, 2008
Author(s): LAC Lawyers
Currently in New South Wales, the Property (Relationships) Act 1984 (NSW) governs the way in which proceedings can be brought by a party to a de facto relationship who is seeking a property adjustment to jointly owned property.
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Date: February 24, 2008
Author(s): LAC Lawyers
Family Law - Where to Apply for a Divorce and the Costs Associated With Divoirce Proceedings
Date: February 24, 2008
Author(s): LAC Lawyers
Marriage breakdowns is a very sad, yet regular incident in our Australian Society. Some surveys have indicated that over 40% of families in Australia undergo divorce each year. During such a stressful time of marriage breakdowns, many parties do not have any background knowledge about the procedures for obtaining a Divorce and what is involved, and when their marriage does irretrievably breakdown, they often feel lost and alone and do not know where to seek help from.
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
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Date: September 14, 2006
Author(s): LAC Lawyers
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Date: September 20, 2005
Author(s): LAC Lawyers
Family law matters can be stressful for all parties involved. Most family law matters are resolved through negotiation, so it is important that you are aware of your legal rights. This is where a family lawyer can help. A lawyer can assist you obtain the best outcome and prevent potentially ongoing and costly legal complications.