|Property & Family Law |
When can we undertake a property settlement? You do not have to wait until your relationship has ended to prepare a property settlement. Property and financial agreements can be prepared prior to a relationship commencing, during the relationship or after the parties have separated. There are time-limits that do apply after separation. De-facto relationship property settlements must be brought within two (2) years of the date of separation and married parties must commence their settlement within 12 months after the divorce being made final. Outside of this time limit a party must make an application to the court to be able to undertake a property settlement.
The options to settle your property can be made through mutual agreement, with the assistance of a mediator, or if no agreement is made then the parties can apply to the court. You can contact a mediation service such as Relationship Australia or a private mediator to organize a property mediation. Contacting a lawyer in the early stages is advisable so that when you attend a mediation you understand your legal rights and you can go into mediation with the tools you need for a just and equitable settlement.
How do we record our agreement?
Where one party wishes to retain the family home and or investment properties and there is a mortgage over the property then the parties will need a binding agreement. The Financial institution will require either a Binding Financial Agreement or Orders from the Family Court. Sale of property If the parties agree to sell the property, then both parties can undertake the sale and the proceeds from the sale can be held by the realestate agency or one of the parties lawyers until settlement is agreed upon.
Property in one name only
Even if real property, vehicles, shares and other assets such as a business are in your sole name or the other party’s name it still falls part of a property settlement. If the title of the property is held in one party’s sole name and they undertake to sell the property or transfer the property prior to any agreement the other party can place a caveat on the property to prevent that party from changing the ownership of the property. This is a situation where you need to contact a Lawyer as soon as practicable.
Superannuation is also an asset of the relationship. The parties can agree that superannuation is dealt with under the one pool of assets, or it can be dealt with under the two pools of assets and dealt with differently. When considered in the one pool then the value is added to the overall total, in two pools then the value is separate. Many parties agree to separating superannuation. For this to be undertaken the Trustee of the Superannuation fund will need a Binding Financial agreement or an Order from the court to transfer the agreed funds to the other party’s superannuation fund. Superannuation cannot be taken as a cash amount. The Superannuation fund will set up a new member’s account for the spouse who will be receiving the agreed amount or percentage. If a party refuses to disclose their super amount a spouse can make an application to the Superannuation fund to receive information about their spouse’s super. Applications to do this can be found on the Federal Circuit Court web page under the heading Superannuation Information Kit. http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/forms-and-fees/court-forms/form-topics/Family+Law/kit-diy-superannuation-info
Binding Financial Agreements
If parties can reach a mutual agreement, they can then take this agreement to a Solicitor who will prepare a Financial agreement often called a Binding Financial Agreement (BFA). Each person must see an independent solicitor before the agreement can be signed. A BFA is binding once a solicitor’s certificate is received and the document is signed. A BFA can only be ended by agreement, if another agreement is prepared that provides that the first agreement ends; finally, with a court overturning the agreement if it is found to be unconscionable.
The parties can make an Application for Consent Orders once they have agreed to a settlement. The parties need to complete the application and prepare brief orders for the court. These documents will be filed in the Family Court and will be accessed by a Registrar of the Family Court. If they are considered to be Just and Equitable the Registrar will make final orders. If an agreement cannot be reached regarding the property settlement A person to the dispute may make an application to the Family Court. This is commenced with an Initiating application, a supporting affidavit and a financial statement which is filed with the court. The matter will be given a first return date and whether represented by a law firm or self-representing the court will make directions on how the matter will proceed. The matter may proceed to a conciliation conference at the court before a Registrar. The parties may agree at the conference and if the agreement is ‘just and equitable’ a final order may be made. If no agreement is reached then the court matter will continue until the final outcome is decided at trial.
Full and frank disclosure in financial cases
Parties must fully disclose their finances, this disclosure continues until the date of settlement. This includes bank statements, tax returns, payslips, shares, superannuation and other financial and non-financial information. Disclosure must be of the party’s total direct and indirect financial circumstances. Penalties if you fail to disclose your financials and the matter is in the family court, the court may refuse to allow you to use certain evidence in your case. The court may dismiss your matter and order a costs order against you. You can be fined and be imprisoned if you are found guilty of being in contempt of the court.
The courts take a 4-step approach to property settlement.
Step 1. Identifying Assets and Liabilities
Step 2. Contributions of the parties – Financial and non-financial
Step 3. Looking at the Other factors including: Health and needs of the parties into the future, wage disparity, needs of children…
Step 4. What is just and Equitable.
Length of Relationship
The court will examine the length of the party’s relationship and look at the contributions each party have made prior to, during and after separation to determine how property should be separated. Length of relationship will be categorised into small medium and large. The contributions that the parties have made may have less impact regarding the length of the relationship. For example, initial contributions in a large relationship of 15 years plus may have little to no impact. Whereas the initial contributions in a relationship of 2 years to 7 years may impact the separation of the property pool significantly. For more specific information regarding length of relationship you will need to seek the advice of a family lawyer who may be able to advice you more specifically as to the percentage split of a property pool base on your specific details.
What if we have a binding agreement made in a country other than Australia
If you have a Binding agreement that provides for how the property is to be separated when the relationship ends you should seek legal advice. The agreement is not valid in Australia and if there is Australian property you will need to either prepare a new Binding financial agreement or seek an order from the court.
When can we get divorced? You must be separated for at least 12 months before you can make an application. You can be living separately or under the same roof as your ex-partner. However, if you resume your relationship during this time for a period of at least three months then the timer starts again. Do I need a Lawyer to make the divorce application? The short answer is No. In Australia it is no fault divorce. One party to the marriage or both parties can make an application. You can commence an online application on the Family Court Website. You will need a copy of your marriage certificate and know the date of separation. If you were not married in Australia, you will need to get a copy from that country to file with your application.