No Comments

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.

Continue reading…

No Comments

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.
Continue reading…

No Comments

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,

Continue reading…

No Comments

Domestic Violence Lawyer

Sadly, domestic violence is frequent in many relationships. It can have incredibly traumatic long-term effects on a person and once it has occurred, it quickly falls into a common pattern. However, domestic violence is a serious criminal offence and is neither justifiable nor acceptable. If you are a victim of domestic violence, a domestic violence lawyer at Matthews Folbigg Lawyers can provide you with the legal advice necessary to ensure your protection.

What is domestic violence?

Domestic violence can take many forms. Some of the most common types of domestic violence that a person can experience include:

  • Physical violence – unwanted physical contact such as punching, beating and slapping;
  • Emotional violence – behaviour such as name-calling that is directed towards humiliating a person, and affecting his or her confidence;
  • Economical violence –actions or behaviour intended to control a person’s use of their money especially when he or she is financially dependent on their partner;
  • Continue reading…

No Comments

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. Continue reading…

No Comments

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:

Continue reading…

No Comments

Binding Financial Agreements

What is a prenuptial agreement?

Binding Financial Agreements (BFAs) as they are known in Australia are made before marriage and are designed to protect your assets. If such an agreement is entered into, it may exclude assets in the agreement from the asset pool of both spouses, provided that the agreement has been drafted correctly.

Who should get a Binding Financial Agreement?

A BFA can be made by couples before they get married. They are particularly useful in second marriages, where both spouses have children from previous relationships. Spouses may wish to enter into these agreements to ensure that certain assets brought to the second marriage will pass to their children of a previous relationship. A BFA is also useful in cases where one spouse has considerably more assets than their partner (including businesses, farms, inheritance, gift, lottery wins or other financial assets they want to keep if the relationship should fail). BFAs are complex and can in some circumstances be successfully challenged in Court. We can assist in identifying whether the option is best for your family circumstances.

Continue reading…

No Comments

Child Custody

The law abolished the concept of ‘child custody’ and does not make any distinction between the rights of fathers and mothers. Instead, the ‘best interests’ or welfare of the child is the paramount consideration that the Court takes into account in determining ‘child custody’, that is who the child with live with and spend time with.

While the law does not guarantee an equal-shared parenting arrangement in every matter, both parents have the responsibility for the care of their children. If the Court decides that an equal-shared parenting arrangement is not in the best interests of the child, the Court must consider ordering significant or substantial time to the non-resident parent.

The question of how much time a child should spend with both parents is determined by what is in the ‘best interests’ of the child. This is achieved by having regard to the two ‘Primary Considerations’, that is:

  • Whether there is any benefit to the child having a meaningful relationship with both parents; and
  • Continue reading…