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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.

  1. What are the deadlines for obtaining a Property Settlement Agreement?

The Family Law Act 1975 (Cth) provides some “deadline dates” depending on whether you were married or in a de facto relationship. There are some exceptions however, the general rule is:

For married couples: You have 12 months from the date your divorce* comes into effect to make an application for a Property Settlement.

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How the Court deals with a significant financial contribution where the property value soared after rezoning

With the fluctuating property market and endless residential rezoning, how the Family Court deals with property introduced by one party to the relationship that has dramatically increased is sure to be a recurrent theme for separating couples.

Background Facts

In one recent case of Jabour, where the parties had been married for a long period and had raised three adult children this circumstance arose.

When the parties first got together the husband owned a 50% share in three blocks of land which he had purchased from his father in 1975 for $26,000.

11 years into the marriage the husband sold his share in two of the blocks to purchase the other 50% share in the third larger block.

The property acquired by the husband was later re-zoned for residential use causing the property value to increase significantly. The property subsequently sold in October 2017 for $10,350,000.

When the case went to Court to be heard by the Judge, the Husband proposed that the proceeds of sale from the property, after costs and expenses be distributed 70% to him and 30% to the Wife. The Wife sought a 50/50 split.
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Family Violence and Your Property Settlement Agreement

At the end of a relationship, couples are often faced with the issue of dividing their property. Due to the emotional nature of relationship breakdown, this task often proves tricky for even the best of couples. Where the couple is unable to come to an agreement, the Family Law Act 1975 (Cth) empowers the Court to make a property settlement agreement that it considers appropriate. In coming to a property settlement agreement, the Court considers financial and non-financial contributions to the relationship and the future needs of the parties. The conduct of the parties is generally not a relevant consideration.

Kennon and Kennon– A Case where the Court has taken into account poor behaviour by a party to the relationship in determining a property settlement agreement.   In the case of Kennon, the   Full Court of the Family Court suggested that domestic violence may be a factor that a Court can take into account when deciding what each spouse is entitled to in a  property split up.

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I Didn’t Know – How You Can Get Out of A Property Settlement Agreement

The Family Law Act 1975 (Cth) s 79A(1)(a)  allows the court to vary or set aside a property settlement agreement where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance. This includes where one party has failed to disclose his or her true financial circumstances. However, not every failure to provide full and frank disclosure during a property settlement agreement will amount to a miscarriage of justice. What is needed is to show that the failure to disclose has led the court to make an order that is substantially different from the order it would have made if full disclosure was made: Barker & Barker [2007] FamCA 13 [123].

 

Pendleton & Pendleton

In the case of Pendleton & Pendleton [2016] FCCA 285, the husband failed to disclose, among other things,

* A reimbursement of expenses amounting to $44,586.84,

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Family Law Lawyers and Mediation

For most of those dealing with their family law matter through the Court system, it becomes apparent very quickly that you might be in this for the long haul and it won’t be cheap. With a currently under resourced Family Court, the excessive delays no doubt add to the stress of separating couples who want nothing more than to be able to move on with their lives. So, what else can you do to try and take back control of your future? Well there are many alternatives but a cheaper and often underestimated option is Mediation. Family law lawyers are able to assess your particular situation and advise whether mediation is suitable in your circumstances.

What is Mediation?

It is a voluntary process facilitated by a neutral third party (the Mediator) where you and the other party can have confidential discussions in trying to resolve your matter. The Family Law Mediator will navigate the process and assist you in sorting through your issues in dispute, generating options for resolution and how you might go about finalising any agreement that is reached. Family law lawyers may also attend with you if you so wish, allowing you to get tailored advice as different options surface through the discussions. If you are not comfortable with being in the same room as the other party, participating in shuttle mediation where the mediator goes between rooms can also provide you with the same benefits. So why should you try it?

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Separation Lawyer Advice for Parenting after Divorce

Separating from your partner is often a difficult thing to go through and how both parties choose to handle that separation can determine how well your children adjust to the new situation. It is not uncommon for children to find a way to blame themselves for the separation despite every intention a parent might have to prevent this. Making a conscious effort to minimise the difficulties faced by children in the aftermath of separation can make all the difference.  Speaking to a separation lawyer at the onset of the split may be beneficial in providing you guidance for parenting after divorce, and allow you to set up a positive routine for your children from the start, which will hopefully extend throughout the remainder of the proceedings.

Some suggestions from the perspective of a Separation Lawyer to consider when coming up with parenting arrangements for your family:

1. Introducing Change Gradually

At separation, children find themselves in circumstances where they need to try to cope with many changes and quickly. This might be in the form of changes to where they live, go to school and spending separate time with each of their parents and extended family. In these circumstances, adhering to a similar routine as before might really help with the transition. For example, working together with the other parent so that children can attend the same school, extra-curricular activities and spend time with their friends as they did before can offer some stability and better equip them to deal with the other changes. Things like introducing new partners or relocating to another area may be responded to more positively if exposed in a more gradual fashion.

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Child Support Lawyers Advice – Changing Child Support Agreements

When making child support decisions, separating parents have the choice of applying to the Department of Human Services (DHS) for an administrative assessment, or they can make a private agreement between themselves with the assistance of their child support lawyers. But what happens if a party disagrees with the assessment; or if a party wishes to alter an assessment due to change of circumstances?

Appealing a administrative assessment made by the DHS

If you do not agree with an assessment made by the DHS, you may be able to make an objection. Objecting to a decision takes the form of a formal review.

Some of the reasons you may wish to object may include:

  • Use of wrong or out dated information
  • Not all the facts have been considered or important details neglected
  • The law has not been applied correctly

If you decide to object to a decision (other than decisions about care percentage) you must:

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Divorce Lawyers

It’s fair to say that divorce is almost always a traumatic event in one’s life. The stress and emotions that are associated with divorce often make people overlook important long-term practical and legal issues that can have a significant effect. Therefore, it is always recommended to seek legal advice when you are considering getting a divorce to obtain an overview of your legal rights and any potential legal issues. Our divorce lawyers at Matthews Folbigg Lawyers can assist in helping you through the traumatic process of a divorce to meet your divorce needs.

When can I divorce?

You cannot apply for a divorce until you have been separated for 12 months. All that needs to be proved is that there has been an irretrievable breakdown of the marriage which divorce lawyers can establish by evidence of you having lived separately and apart from your partner for a continuous period of 12 months before the filing of the divorce application. This can include separation “under the one roof” in some circumstances.

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