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The Bank of Mum and Dad – Gifts from your Parents and Property Settlement Agreements

The Australian housing market is difficult to break into for most first home buyers and many couples have looked to their parents for some assistance to get their foot in the door. For many, parents may provide assistance to their children by allowing them to live at home rent-free or contributing to their deposit in the form of a gift or loan.  In many cases, “the bank of mum and dad” is crucial to helping relatives to be able to buy their own home.

As it becomes more common for parents to provide financial support to the parties during a de-facto relationship or marriage, there is an increasing likelihood that these “third parties” may become involved in a dispute concerning a property settlement agreement between the parties if the relationship was to break down.  For example, where there is an argument as to whether money received by the parties (or either of them) was a gift or a loan to be repaid. [...]  READ MORE →

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The Basics of What Your Exs Company is Worth: The Balance Sheet

One way to determine what you or your former spouse’s company is worth is to instruct your divorce lawyer to engage a single expert valuer to put a dollar figure to the value of the business. Your divorce lawyer will then instruct the valuer to analyse the company’s financial statements among other things to determine the value for the purpose of your family property proceedings.

A company’s financial statements are made up of the following:

  1. Balance Sheet
  2. Profit and Loss Statements (Or Income Statement)
  3. Cash Flow Statement

 

The Balance Sheet

The balance sheet is a snap shot of a company’s accounts. It provides at a glance what the company owns and is owed. It can give an indication of the financial position of the company at a single point in time. [...]  READ MORE →

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Time Limits For Family Property Settlements

Certain time limits apply for bringing a property dispute to the Family Court. The deadline for bringing a property application by your divorce lawyer is either:

  1. If you were married, 12 months after a divorce order has taken effect,
  2. If you were not married, 2 years after your separation as a de facto couple.

Accordingly, it can be a good idea to keep a record of the date of your divorce or separation and set a reminder a few weeks before the deadline.

If you want to make an application for property after the deadline has passed, your divorce lawyer may be able to seek permission from the Court for an extension of time. The Court will not be able to grant you permission, unless it is satisfied that hardship would be caused to you or a child if the Court did not step in. Your divorce lawyer will also have to demonstrate a reason for the delay in bringing proceedings after the deadline. The Court will also consider the length of your delay in making you claim. [...]  READ MORE →

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Reaching a Property Settlement Agreement through Family Law Arbitration

There are numerous methods aside from traditional Court determinations which parties can utilise when seeking to reach a property settlement agreement. Section 10L of the Family Law Act 1975 defines arbitration as “a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.”

How do Arbitrations operate?

Arbitrations are available for property and financial matters and are voluntary. A matter may also be referred by a court order. They can take place before, during or after proceedings have commenced. [...]  READ MORE →

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Collectables and your property settlement agreement

Whether you collect postage stamps, designer handbags, books, art or cars, don’t underestimate the value of your little hobby when it comes to a property settlement agreement.

In the recent case of Isaacson [2019], Judge Wilson considered a property settlement agreement dispute between a former husband and wife, as to the value of the husband’s book collection. The husband alleged the book collection to be worth $183,905.00 and the Wife believed it to be worth $384,421.00.

Both parties sought to rely on their own “expert” evidence as to the apparent value of the book collection.  This is where the case highlighted the importance of seeking legal advice when intending to use expert evidence to ascertain the value of collectables in a property settlement agreement. [...]  READ MORE →

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Property Settlement Agreement – Can the Court Split Employment Bonuses?

What is Property?

When negotiating a property settlement agreement, one of the first steps to be considered is what property you and your former spouse have or own. This step is important as only property can be subject to a property settlement agreement. The Family Law Act defines property as “any property in the possession of either party, either vested or in remainder.”  Property of the relationship generally includes:

  • All assets that are owned, g. the family home, motor vehicles, personal items
  • All assets under your control, e.g. a business, superannuation, shares and funds at bank
  • All liabilities, e.g. mortgages, credit cards, hire purchase agreements

Are Employment Bonuses Property?

In the case of Ilannello & Ilannello (No 3) [2018] FCCA 3752 (19 December 2018) the Court considered the question of whether the wife’s future employment bonus payments could be the subject of a property order. [...]  READ MORE →

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Quick Questions Answered: Property Settlement Agreement

  1. What is a Property Settlement Agreement?

A Property Settlement Agreement contains the agreed terms to divide property between you and your former partner following separation. This includes assets, liabilities and superannuation.

  1. When Can I Get A Property Settlement Agreement?

You can finalise a property settlement agreement as soon as you and your former partner have decided to separate i.e. end your relationship.

  1. What if we are still living under the same roof?

You can be living under the same roof but still be considered ‘legally separated’. You do not need to be living in separate households; however, your relationship does need to have ended. [...]  READ MORE →

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Property Settlement Agreement

The law encourages parties to negotiate and reach an amicable agreement as to the division of property following separation. If you have come to a Property Settlement Agreement with your former partner then you may wish to formalise this by entering into a binding property settlement agreement.

Sometimes parties come to an agreement without having properly considered the nature and effect of their agreement.

When negotiating a Property Settlement Agreement some things to keep in mind include the following:

  1. Property Settlement Agreements differ depending on your particular set of circumstances.
  2. A fair Property Settlement Agreement may depend on the length of your relationship or marriage and this is just one of the factors to be considered.
  3. There may need to be an adjustment for financial contributions made prior to the relationship by either party.
  4. There may need to be an adjustment for one of the parties’ future needs such as their age, health, ability to work and their earning capacity.
  5. There may need to be an adjustment in favour of the party who has the greater care percentage of any children under the age of 18 years.
  6. There may be additional adjustments required for any loans to the parties from one of the parties’ parents or family members. You may also need to consider the nature of any gifts from either parties’ parents or family members.
  7. There may need to be an adjustment for any inheritance received by a party and considerations need to be had for when the inheritance was contributed to the relationship
    i.e. before, during or after the relationship and/or marriage.
  8. You should consider any tax consequences such as capital gains tax and there may be a need for particular advice from your accountant or a financial planner.

It can be difficult to navigate and consider the matters above on your own and how they apply to you and your family. As such, it is important to get the right advice when negotiating a Property Settlement Agreement.  We recommend obtaining advice from an experienced and knowledgeable lawyer that specialises in Family Law matters. [...]  READ MORE →