Negotiations and determination as to how the assets, liabilities and financial resources of your relationship will be divided between you and your spouse or partner, can be determined at any stage after separation and before divorce.
Whether you are seeking advice prior to separation as to what your entitlement to be if you were to separate or whether you have separated and need advice on separating the assets, liabilities, and financial resources of your relationship, then it is imperative to obtain advice on your property and maintenance rights, entitlements, and obligations at the earliest stage possible.
We provide you with strategic and realistic advice in conjunction with accountants and financial advisors to obtain the best possible outcome for you.
We even see individuals before the final decision to separate has been made, and we can assist you in understanding how the breakdown of the relationship will impact upon you financially.
We are able to provide you with advice on issues such as:
How to prepare financially for separation
- What to do with a joint Bank Account?
- I don’t have access to our bank account.
- My spouse or partner is excessively using the credit card
- My spouse or partner has taken money from the line of credit
- Should I move out of the house?
- If I do move out of the house what can I take with me?
- Will moving out of the house affect my rights for a property settlement?
- The property is not in my name, what can I do to protect myself?
We will discuss with you the four step process as to how the Family and Federal Magistrates Court of Australia determine your property settlement which are:
- Defining the asset pool to be divided
- Consideration of the initial contributions at the commencement of the relationship and the contributions made during the relationship
- Future needs of the parties
- A just and equitable property settlement
There are numerous factors the Court takes into account when considering this four step process, and we are able to advise you relation to your specific property settlement situation.
The Family Law Act provides for parties involved in property settlement negotiations or disputes to provide full and frank disclosure in relation to all documents that are relevant to the property settlement. This may include bank statements in which you hold an interest, taxation returns, pay slips, trust and company documentation, and superannuation information.
The disclosure obligation is ongoing throughout the negotiation or dispute.
This complex area of law provides for a spouse who requires financial assistance from the other spouse to assist them in moving forward after the breakdown of the relationship.
In making a determination or negotiating spousal maintenance, consideration will be had to the expenses and the income of both parties. Where it can be seen that the spouse or partner being asked to pay spousal maintenance has an income that exceeds their expenses and enables the payment of some maintenance to the claiming spouse or partner, then an Order may be made for a lump sum payment, some short term interim payments, or some long term regular payments for spousal maintenance.
Exclusive occupation of the home
Where there is a dispute and both parties either will not or say they are unable to vacate the home in which both parties are continuing to reside, a party may make an application to the Family or Federal Magistrates Court of Australia seeking exclusive use and occupation of the home. There are many factors the Court takes into consideration in determining such an application. These are not set out in the Family Law Act but are set out in the relevant case law.
The implications of bankruptcy in Family Law
Bankruptcy can have a profound effect on the determination of property settlements. Important factors to consider include when separation occurred, when the bankruptcy was declared, whether property has recently been transferred, and working with insolvency practitioners to ensure that the nonbankrupt spouse is protected as much as possible to ensure a just and equitable property settlement. This is a highly complex area of law and advice should be sought at the earliest opportunity and prior to bankruptcy being declared, if possible.
As a part of property settlement and even if superannuation is the only asset of the parties, the Family Law Act provides for superannuation entitlements to be split to effect an overall just and equitable property settlement.
Due to the range of superannuation funds, whether they be accumulation, military, or self-managed superannuation funds, there are various methods of valuing same, and all financial implications of splitting superannuation needs to be considered to ensure that one party is not receiving more or less than the negotiated terms.
Divorce and your Property Settlement
It is not necessary for to be divorced in order to have a property settlement but if you are divorced, then it is imperative you seek immediate advice in relation to your property matters as there is a time limit to complete your property settlement within 12 months of the date of your divorce. If you do not make your application for property settlement in the Family or Federal Magistrates Court of Australia or have a property settlement agreement finalised, then you will be out of time to make your property settlement application and you will incur the costly expense of having to seek an extension of time to bring your property settlement proceedings from the Family or Federal Magistrates Court of Australia.
Time Limits for De Factos
If you have not been married but have been in a de facto relationship and need to resolve your property settlement, then the time limit for your matter is two (2) years from the date of separation.
Like in circumstances where people are married, if your application for property settlement or finalised agreement is not made within the statutory time limit, then it will be necessary to bring a costly application seeking an extension of time to bring that application through either the Family or Federal Magistrates Court of Australia.