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Family law and de facto relationships law does encompass more than just the breakdown of marriages and relationships. It is important to consider your options when entering into a relationship or marriage and/or during a relationship or marriage. We are highly skilled in assisting clients to manage and protect assets in these circumstances - for example, protecting family wealth and assets from a claim by a de facto partner or spouse and protecting assets and financial resources if you have been previously separated or divorced.
It is really important to ensure that you have a valid will at any time and particularly after Consent Orders have been made or you have entered into a Binding Financial Agreement or you have had a divorce granted. At John Harris Solicitors we have the skills and expertise in all aspects of family law and related issues. We assist with all such matters including:
- Property settlements
- Spousal Maintenance
- De facto relationships
- Pre Nuptial Agreements (“Binding Agreements Agreements”)
- De Facto Financial Agreements
- Same Sex relationships
- Divorce
Property Settlements
The Family Court has powers to make any order which it considers appropriate altering the interests of either the husband or the wife in any property owned by the parties. Set out below are some of the matters that the Court will consider. It is not intended to be exhaustive list and you should understand that each case will be determined on its own merits and that every person considering separation must seek professional guidance from a solicitor.
The property which the Court considers is that which has been brought into the marriage or acquired during the marriage or after separation. The property brought into the relationship by either party is treated somewhat differently than that acquired during the relationship and the Court usually gives credit or makes an allowance reflecting that contribution. It does not really matter in whose name a particular asset stands or whether the asset is held by a company or trust. If the asset is in the effective control of one party or the other it will be taken into account by the Court.
Property comprises all assets such as houses, land, shares, money in the bank, furniture, motor vehicles, insurance policies and the like. A superannuation entitlement is not technically property but can be treated like property and can be split between the parties. Both parties are obliged to be totally frank in making disclosure of their assets.
In deciding what Order to make the Court takes into account numerous factors which include:
- The direct or indirect financial contribution made by either party towards the acquisition, conservation or improvement of an asset. An example would be coming into the marriage with an interest in real estate.
- The contribution other than financial contribution made directly by a party to the acquisition conservation or improvement of an asset. For example, a party who paints the house makes a non-financial contribution.
- The contribution made by a party to the welfare of the family. This includes the role played by one or other partners as the homemaker and parent.
- The effect of any proposed order on the earning capacity of either party.
- A whole range of matters which are directed more to the future needs of each party. Included here are issues such as the state of health of each party, the question of whether one or other party has an obligation to support a child of the marriage and the ability of each party to obtain to continue work.
- The Court will also consider the fairness and equity of the proposed division of assets
An application for property settlement can be made immediately following separation and it is not necessary to wait until divorce. However, once a divorce has been obtained the application for property must be made within twelve months of the date of the decree absolute (a month after the divorce hearing). If the application is not lodged within that time a person must prove to a Court that there are special circumstances which allow the application to be made late.
Reaching agreement as to division of property
Generally speaking, when lawyers are consulted about property settlement their initial aim is to have the parties reach an agreement on the settlement without the need to issue proceedings through the Court.
If that can be done there is a considerable saving in both time and cost not to mention a significantly lower level of stress for all concerned. If agreement is reached it can be evidenced by Consent Orders or a Binding Financial Agreement.
Consent Orders are obtained by a very straight forward procedure which does not involve either party or their solicitors actually attending Court. It is important that the agreement is evidenced in writing, particularly where the parties enter into a transfer of property as part of the property settlement (such as where one transfers his or her interest in the home to the other) as stamp duty liability is waived.
Court proceedings
In the event that the parties are unable to reach an agreement one or other of them will issue an application to the Court and at that time also file a statement setting out their financial circumstances.
Once the application has been issued by the Court, copies of the documents are served on the other party who should then file a response together with a statement of their financial circumstances.
The parties are required to attend a Conciliation Conference, which is an occasion when the Registrar and the legal representatives assist the parties in making a concerted effort to reach a settlement. If a settlement is reached at that time often the details can be written out in the form of Court Orders and the Registrar conducting the conference will make the Orders then and there, finalising the matter. Otherwise the Orders can be prepared and signed over the ensuing days and forwarded to the Court.
If the conference is unsuccessful either at that time or at a later date the Registrar will give directions for the filing of material and other things required to be done to prepare the matter for hearing and will list the matter for hearing. The hearing is conducted before a Judge and each party and his or her witnesses give evidence.
A lot of property matters are settled at or as a direct result of the conciliation conference. Nonetheless, if the parties can reach an agreement at any time the matter can generally be finalised immediately.
Spousal Maintenance
Under the Family Law Act, a party to a marriage is liable to maintain the other to the extent that he or she is reasonably able to do so if, and only if, the other partner is unable to support him or herself adequately. In deciding whether a spouse is entitled to maintenance (and assessing how much maintenance is to be paid), a Court will take into account factors relevant to the particular case which, amongst other things includes:
• Having the care of the children of the marriage under the age of eighteen years;
• His or her age or physical or mental incapacity for employment;
• Any other adequate reason.
In considering maintenance the Court is not permitted to take into account the entitlement, of the party to whom the maintenance may be payable, to any pension from Centrelink. Thus a spouse whose only source of income is social security benefits will be treated as having no income at all.
Maintenance for a spouse ceases on his or her death or remarriage or upon the death of the person making the maintenance payments. If there is a change in financial circumstances of either party the Order can be varied.
Periodic spousal maintenance may be ordered for a specific period of time, such as until the children are old enough to attend school and the parent can resume paid employment, or for sufficient time to enable the parent to study, update their skills and obtain gainful employment.
Often the parties will resolve the issue of spouse maintenance by one paying to the other a lump sum rather than making payments on a weekly or other periodic basis. A lump sum payment may be preferable for a party as it finalises financial matters and avoids the need for one party to make (and the other to wait for) periodic payments.
An application for spousal maintenance can be made immediately following separation and it is not necessary to wait until Divorce. However, once a divorce has been obtained the application for spousal maintenance must be made within twelve (12) months of the date of the decree absolute (a month after the divorce hearing). If the application is not lodged within that time a person must prove to a Court that there are special circumstances which allow the application to be made late.
Binding Financial Agreements
The Family Law Act provides that individuals who are married or planning on marrying can enter into a Binding Financial Agreement at any of three different stages of their relationship:
(a) Before marriage (also known as pre nuptial agreements);
(b) During marriage but before Divorce; or
(c) After Divorce.
A Binding Financial Agreement (BFA) addresses the division of property and superannuation in the event of separation. It also can provide for the payment of spousal maintenance.
Binding Financial Agreements exclude the jurisdiction of the Family Court. They are contracts, signed by each party which explicitly provide the parties do not want the Family Court to make a decision regarding the division of their assets in the event of separation.
The first type of agreement occurs when a couple decide that they want to clarify the division of their assets prior to marriage (pre nuptial agreements). These agreements usually set out the assets and liabilities of the parties at the date of marriage, and how they seek their pre marriage assets are divided in comparison to the assets acquired during the marriage. These types of agreement are common between parties who are entering a second marriage, or who own assets prior to marriage, and want to keep those assets separate to their partner’s assets.
Secondly, couples can enter into a Binding Financial Agreement during marriage. This sometimes occurs when the parties decide during their marriage that they want to set out their financial rights and responsibilities in the event they were to separate in the future. Alternatively a BFA can be entered into when the parties are separated, but prior to Divorce. The agreement can provide for a division of the superannuation of the parties, division of their non superannuation assets and any lump sum or periodic spousal maintenance.
Thirdly, a BFA can be entered into after the parties have obtained a Divorce. The matters dealt with in a BFA prepared following Divorce are identical to those dealt with in the second type of agreement set out above.
Each party to the Binding Financial Agreement must have obtained independent legal advice and must contain a certificate from the legal practitioner confirming that the practitioner has advised their client, independently of the other as to effect of the agreement on the rights of that party; and the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement.
The difference between a Binding Financial Agreement and Consent Orders dealing with division of property is that the BFA does not need to be lodged with the Court for approval, and is not subject to review by the Court as to whether the BFA is just and equitable. A party may elect to enter into a BFA in preference to Consent Orders where their financial circumstances are complex, involving complicated company structures and taxation matters.
The best way to get the answers you need is to speak to a solicitor, so call us on +61 7 3839 1500.
Organise an initial consultation
A face-to-face consultation gives you the opportunity to discuss your family law issue with professionals who deal with and resolve these issues on a daily basis. We provide a free half an hour initial consultation. It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.
For more information please call us on +61 7 3839 1500 or send us an e-mail at info@jhsolicitors.com.au. We are here to help.