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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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Wedding bells and preparations may be underway, but do you know the law if things don’t work out the way you planned? A Marriage Lawyer Can help

Have you thought about what could happen if you separate down the track but you aren’t sure whether to raise this with your partner or whether you should get advice from a professional?

Getting married is a special and exciting time for both parties. The lead up is usually filled with planning the wedding and making decisions about your future together. Naturally, separation and divorce may be the last thing on your mind during this time.

Should I speak with a Marriage Lawyer?

Ask yourself:

  • Are you thinking about getting married?
  • Thinking about speaking with a Marriage Lawyer?
  • Do you have assets you wish to protect?
  • Want to understand what may happen if you separate down the track?

If the answer is yes, then you can make enquiries by speaking with a Marriage Lawyer.

Why should I speak with a Marriage Lawyer?

It is useful to know where you stand before making one of the biggest decisions in your personal life.

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How can a Marriage Lawyer Help?

When your marriage or relationship breaks down, there are many things that you need to consider. No doubt, going through this will bring upon change and while emotions may be high, it is very important that you speak to a Marriage Lawyer.

What can a Marriage Lawyer assist you in dealing with:
  • How to divide your finances
  • How the mortgage is to be paid
  • Who should pay the mortgage
  • Whether you should contact the bank for special consideration
  • Whether it would be ideal to sell the house
  • Where the children should live
  • How much time the children should spend with your partner
  • What should happen with the children on school holidays
  • Whether you should seek child support from your partner

At Matthews Folbigg Lawyers, a Marriage Lawyer will work closely with you to ensure you are well aware of your entitlements when being advised about family law issues. A Marriage Lawyer can help you understand the process involved with Divorce; Property settlement; Superannuation; Separation agreements; Parenting and custody disputes and Child support.

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Benefits of Consulting with a Marriage Lawyer

When a marriage or de facto relationship breaks down, it can be a stressful time. Part of this process may involve the separation of assets, which may include the family home, business interests, investments, savings and superannuation.   If a mutual agreement cannot be reached, the Court can determine the settlement. Obtaining the right financial and legal advice from a marriage lawyer at the early stages of this process can help a party to navigate their way through the Family Law system and make decisions about their assets and superannuation that provides a better outcome.

Superannuation Splitting as part of a property settlement

Superannuation is an asset that can usually be divided as part of a property settlement. Sometimes it is not possible to split superannuation.  For example:

  1. When the interest is of little or no value, when it would not be cost effective to do so (see The Commonwealth Attorney-General’s guide “Splitting Laws – Frequently Asked Questions”);

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Separation Lawyer and Property Orders

Clients often ask their separation lawyer, “What kind of property Orders will the Court make?”

In the 2012 case of Stanford; the Appeal Court of the Family Court decided that in some cases, the Court may decline to make any property Orders between partners who have separated. Most parties who commence their case in the Court expect that the Judge will make some type of Order for a property adjustment.
In the case of Stanford, divorce lawyers saw that sometimes the Court will not make any order. Before the Court makes an Order the separation lawyer needs to be able to show that it is just and equitable to do so.

In that case the separation lawyer for one of the parties was able to show that because of the way that the parties to the relationship managed their finances separately during the relationship, that the arrangements that they themselves had worked out should not be changed. Although they had been together for many years and one party had a lot more in assets and super than the other party, the Court chose to not make a property Order.

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Divorce Lawyer Help: My partner gambled away our mortgage repayments

Under the Australian no-fault based divorce system, a  divorce lawyer  may tell you that a former spouse or partner that expends joint monies on gambling or extravagant personal spending is not sufficient reason for a property adjustment in the other partner’s favour. However, on a case-by-case approach, a divorce lawyer can ask that the Courts may consider adjusting your property settlements when there is substantial wastage by one party.

In Padfield v Padgett [2015], Baker J found two kinds of conduct were relevant when considering adjustment to property under the Family Law Act 1975:

a)      Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or

b)      Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

How can a divorce lawyer help?

In Padfield v Padgett, the Court found that the husband had indeed gone about the parties’ funds in a way that meant they were reduced to the detriment of the wife. Specifically, he withdrew funds from bank accounts and failed to comply with orders that required him to make payments without explanation sufficient before the Court. The Court found in favour of the wife by a 10% adjustment of the property, which resulted in a 70/30 property settlement in the wife’s favour.

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Third Party Debtors in Family Law

Persons owed money by another person under an order of the Court or child support liability can enforce payment of the debt in the Family Court. One of the methods that child support lawyers  can use to enforce debts is a Third Party Debt Notice. Under this Notice the Court directs a third party to pay money that the third party owes to the respondent to the payee instead of the respondent.

Typically, the third party is an employer of the payer or a bank or building society where the payer has money in an account. When served with a Third Party Debt Notice, any money that you owe to the payer is affected by the Notice. This could be:

  • money payable by an employer (the third party debtor) to the payer, including wages, fees, bonuses, commissions, overtime pay or other money payable in addition to or in lieu of wages, a pension, annuity, vested superannuation money, money payable in lieu of leave, or retirement benefit due or accruing to the payer;

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