Property Settlements
There is a popular misconception that married people and de facto couples are treated the same when it comes to property settlements. Suffice to say they are not. De facto couples are treated less favourably. Where married couples separate they need to consider the following:
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Divorce
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Spousal maintenance
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Children
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Property settlement
Property settlement occurs when the matrimonial asset pool is divided up between the parties to the marriage. It takes into account all income, all assets and all liabilities. Sometimes real difficulty may be experienced in determining what is property as it contemplates both possessory and reversionary property. Essentially the courts look at the parties' financial and non-financial contributions and future needs. In many cases the contributions of homemaker are important particularly for long term marriages. Obviously this is nowhere near as important in short term marriages and particularly where there are no children. Although property matters may be dealt with between the parties this may be unwise and it is always best to formalise any agreement by consent orders. Where independent legal advice and consent orders are not sought then it is highly likely that one party to the arrangement would be significantly disadvantaged. In these matters the court always takes into account what is fair and reasonable and it is always best to obtain independent legal advice before doing so as it is the best method available to ensure that both parties are properly protected.
As a general rule although parties have to wait at least 12 months prior to the time they divorce they do not have to do so in the case of either spousal maintenance or property settlement. Spousal maintenance can sometimes be worked out prior to the time that the parties separate but in the case of a property settlement it is usual for the parties to apply their minds to this once the break has occurred. The property settlement contemplates not only a division of the assets but also the right to spousal maintenance as appropriate. Child maintenance is a separate issue and is almost without exception a matter for the child support agency. Where child support remains unpaid it is up to the child support agency to follow that matter up. There are few exceptions which justify obtaining your own lawyer to recover outstanding child support payments.
Once a party has obtained a divorce (decree absolute) then they only have 12 months from that time to make an application for a property settlement and/or spousal maintenance. Although applications can be made out of time this is an extremely foolhardy and expensive way of dealing with such important matters. The Family Law Court has extremely extensive powers in the area of property settlements and can make orders to adjust the interests of parties in any property. In fact when the court is asked to make an order it requires that it has all information before it so that it may do this fairly and reasonably. As a result the court requires all information about all income, assets and liabilities both here and overseas so that proper consideration can be given to the adequacy of any property settlement including income derived from assets held in or on trust. Superannuation is one of those assets which now falls into the matrimonial pool and may require to be split.
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Property Settlements Articles
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.
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.
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’.
Family Law - Are you Eligible to Obtain a Divorce and What is Involved in Obtaing One
Date: February 24, 2008
Author(s): LAC Lawyers
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.
Family Law - Binding Financial Agreements Under the Family Law Act 1975 (Cth)
Date: June 15, 2010
Author(s): Carol Grimshaw LL.M., B. Legal Studies, Adv. Dip. Bus.
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’).
Family Law - Can A Marriage Registered Overseas (Asia) Be Dissolved In Australia
Date: March 15, 2010
Author(s): Pheba Netto LL.B. (Hons)
There are many Malaysians who have now made Australia their home. Some come here to study, some to relocate with their families and some come here as a result of breakdown of marriage. When there is a marital breakdown, people sometimes leave their home country without finalising their divorce or custody matters. What then can they do now that they are here in Australia?
Family Law - Considering Seperation? Here are your next steps
Date: March 31, 2010
Author(s): Carol Grimshaw LL.M., B. Legal Studies, Adv. Dip. Bus.
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 - 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 - Marriage Separation or the break down of a long term de facto relationship is always difficult. At LAC Lawyers we can guide you through the legal process
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 law - Spousal relationships - What's the law got to do with it?
Date: June 15, 2010
Author(s): Carol Grimshaw LL.M., B. Legal Studies, Adv. Dip. Bus.
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.
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 - The Divorce Process
Date: September 14, 2006
Author(s): LAC Lawyers
Applications for divorce are processed by Registrars of the Federal Magistrates Court, who sit in the federal court buildings at Sydney and Parramatta . The court process is quick and easy for most people, and if there are no children under the age of 18 attendance at court is unnecessary for either party.
Family Law - The importance of a instructing a lawyer when applying for divorce
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.
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.
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.
The Role of the Family Lawyer: Putting the “Proper” back into Property settlements
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.
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.