Family Law Property Issues in Australia

(Victorian & Australian Law)

In recent times, the jurisdiction of property disputes in Family Law has broadened. Traditionally, property was only divisible between married or divorced couples. De-facto and same sex partners are now able to apply for a property settlement, though under different law. In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court, to be decided on the basis of need.

The settlement reached becomes legally binding and enforceable by the courts. Here’s a rough guide to what usually happens in these situations…

Applications

Parties can make a property settlement by agreement or, if agreement cannot be reached, make an application to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court or to the Federal Magistrates Court where a property dispute is worth less than $700,000.

Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. De-facto and same sex partners can make an application under the Property Law Act 1958 (Vic) in the Supreme Court, County Court or Magistrates’ Court.

Once an application is made, the parties will be asked to attend a case conference, with the aim of settling the property dispute by agreement before it goes to court. Present at this conference will be the parties, any family lawyer involved and a court registrar. If this conference is unsuccessful, the parties will go to court.

Property disputes in de-facto and same sex relationships (domestic relationships) are dealt with under the Property Law Act 1958 (Vic). A domestic relationship is a relationship between two people (regardless of gender) who live together as a couple on a domestic basis but are not married. The domestic relationship must have existed for at least two years for an application for a property dispute to be made under Part 9 of the Property Law Act . If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. The relationship must have ended after 8 November 2001 for Part 9 to apply.

Property

The type of property divisible in a property settlement includes assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account. In a domestic relationship, as governed by the Property Law Act , superannuation and retirement benefits are not included in a property settlement. In making an order for property settlement, the court calculates the total pool of assets of the parties.

The division of these assets is based on both contributions made by each of the parties to the asset pool and future needs. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.

If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.

Spousal Maintenance

A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once.

Spousal maintenance cannot be applied for where a domestic relationship exists.

Enforcement

If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied.

If a party is not complying with the orders made, an application can be made to the court for enforcement. In this application, the party applying must set out exactly what the problem is. The court will then decide whether an order is needed to enforce the existing order.

A family law property settlement is an important process to go through after the breakdown of a marriage or domestic relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.

Your Other Last Resorts – Things To Try Before Trying Divorce

Getting a divorce is an incredibly serious decision and should be treated as such. This is a last resort that will tear apart your family, destroy your dreams for the future and put an end to what’s probably the most important relationship in your life.

Of course though sometimes divorce can seem like the only resort if you are constantly arguing and if you’re making each other unhappy rather than happier, or if you just don’t feel the love that you used to for that person anymore.

Often though there are other options even though it might not feel that way – you just have to be willing to try anything. Here we will look at some of the other things to try before you give up on your relationships once and for all.

Counselling

Marriage counselling is something that can seem abhorrent to many people who maybe see it as potentially awkward, forced or embarrassing, or who perhaps lack faith in the whole concept.

Even if you don’t love the sounds of it though, you should always give counselling ago, just so that you can say you’ve tried everything. You may be surprised at just how insightful some counsellors can be, but more to the point you’ll find it sends an important message to your partner that you don’t want to give up.

You may also find that individual counselling can help. While you probably don’t see your dispute as your fault, it does take two to tango and if you aren’t happy in your relationship then this is going to come across in the way you deal with one another. Consider getting counselling then in order to deal with any issues that may be manifesting themselves in your relationships.

Time Apart

Sometimes you don’t appreciate what you’ve got until it’s gone. If you wait until your divorce has gone through to realise this though then it’s of course going to be a little too late. Instead then, try spending some time apart from one another before you reach that point and see how much you find yourself missing your partner. At the same time, spending time on your own can help you to work through your problems and to gain perspective. Sometimes we just need some ‘space’ and some time to think, and going away for a few days can help us to come back with a new game plan, a new sense of perspective and a better idea of what you want from your relationship and from your partner.

Talking Frankly

On other occasions though, this is something you’ll need to talk through together. If there are things each of you are unhappy with, then simply raising your concerns with one another can make you more likely to come to a conclusion. Try listing the things you are unhappy with for instance, and explaining why you feel the way you do. Too many of us avoid honest, frank discussion because we don’t want it to turn into an argument, and ironically this will often mean that when those issues finally do come to the surface, they end up being much more intense and degenerating into a full blown argument where both parties lose their cool.

If you try to ‘re-draw’ the terms of your relationship, you can change things that you’re both unhappy with, or just introduce new rules and ideas to try and make things easier. Perhaps for the sake of your children, agreeing to maintain a friendly relationship but sleep in different rooms could be a workable solution and this could eventually lead to a rekindling.

The Other Issues

Sometimes a marriage or a relationship can be doomed by circumstances outside of your control. For instance, if you are both very stressed by your careers, your living arrangements, or illnesses in the family, then this might mean that you end up arguing and feeling very tense when actually you could have been perfectly happy together.

If you suspect this might be the case, then see if changing your circumstances can help to make your relationship easier again. Perhaps you could move somewhere new, or maybe you could address your careers. This is of course a lengthy process though, so to find out more quickly if this is indeed the cause of your problems, try taking time off to go on holiday together and see if you can re-find your rhythm.

Featured images:
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Beatrice Mackenzie is a regular blogger. She gives relationship tips and advice on her blog. She says choosing a divorce law firm can be a overwhelming task but with little patience and guidance anything is possible.

Significance of Divorce Lawyers in Complicated Divorce Cases

No couple is ever prepared or expects to go through a divorce, but it is an uncertain event and you better need to be prepared if it happens to you. Divorces are probably the most complicated cases and more sensitive than any other case. It is smart to take the help of appropriate legal firm if the case involves legal proceedings. But you must remember it is not easy to find a good, reliable and experienced lawyer, nevertheless it can be done with little effort put in that direction.

Before you go out searching for a divorce lawyer here are a few questions that I have tried to answer for you, as I think you must be having these thoughts in your mind.

How can a good divorce lawyer help?

First of all it is important for you to understand that if the case is complicated and legal proceedings are involved, it is necessary to hire a professional who has knowledge of legal proceedings. Many legal issues pop up during divorce and a lawyer can help you get through them smoothly. The financial issues and child custody problems are generally common in divorce cases and if you hire a wrong lawyer you may lose on both these fronts. But if you have hired a good lawyer, you can be certain to win the case and have the financial rights as well as rights over your children.

The next question you must be having is – It is inevitable to hire a divorce lawyer?

Well in answer to that, it is not necessary to hire a divorce lawyer if you and your partner are getting separated under a mature and mutual understanding. This means that you have come to an agreement on all the matters involved like fair distribution of property, assets and finances; including your rights on your children. It is very much possible to go through the divorce without any or very less complications in such cases, but on the other hand if you have your doubts about the property settlement or other issues with which you are not satisfied then it is better to hire a divorce lawyer as the divorce laws are complicated.

How to choose the right divorce lawyer?

Once you are convinced that you need a divorce lawyer for your case, you might wonder how to find a good divorce lawyer. You can start by searching for a good law firm. You can also ask for the references for a good lawyer from your colleagues, friends or relatives. There are many factors you need to consider when you are searching for the lawyer. First of all you need to know how experienced your lawyer is, then what is the way he charges fees and is that amount favorable to you, and in the end you also need to know the accessibility of the lawyer.

Conclusion:

Once you are satisfied that you have found the right lawyer for you, go ahead and hire him and keep faith in his abilities, he will get you through the divorce with least difficulty.

Divorce Law Reform in England and Wales

Divorce or the termination of a civil union is always a very sad experience. In the United Kingdom, where there is no such thing as a “no fault” divorce, nor any concept of simple “irreconcilable differences” (a lovely term only the Americans could have devised), divorces are often unnecessarily caustic and combative because most petitioners choose what is perceived as the quickest and least complex grounds: Unreasonable behaviour. Ask any solicitor and they will have plenty of stories of strange reasons offered for a divorce petition: Bad cooking, being forced to watch television programs the petitioner did not enjoy, overly flirtatious behaviour by a spouse. The annals of divorce are filled with incredible examples of so-called “unreasonable behaviour”.

The most unreasonable behaviour, however, is often laid at the feet of the judges dealing with these cases, usually in the arena of asset division and support. The problem, as the Law Commission recently acknowledged, lies in the laws as written. While they give the judges great authority and very precise powers to make financial decisions in divorce cases, they give almost no guidance as to what, exactly, a judge should be seeking to achieve with such orders. As the nature of marriage becomes more complex with partners bringing assets, income, and property into a union on an increasingly equal basis, the decision to award one party support or a larger share of communal property is no longer a simple equation – time put into a union against lost income – or any similarly simplistic comparison.

While the prenuptial agreement has become more and more popular – and gained credence in the courts as long as they are properly prepared and executed without duress – they remain largely a tool of the wealthy, leaving plenty of divorces where there are considerable assets but no prenup to fall back on when the union is dissolved. The prenuptial agreement also suffers from the perception of doubt about the marriage – after all, if you have decided to be with a person forever, why would you need a contract spelling out the financials of a divorce?

This means judges continue to decide financial division in divorce cases with very little by way of legal guidelines. Most people agree that such guidelines are necessary – the judges already have the power to make arrangements for both parties in a divorce, but they need to be able to ascertain what the goals of those arrangements should be. Should they be used to encourage independence from each other even if one spouse has been financially dependent on the other for a long period of time? Should they be used to guarantee a spouse’s lifestyle post-divorce indefinitely? A combination of both? The argument can be made that if asset division and support orders are designed to keep up one spouse’s lifestyle, there will be little or no reason for them to ever seek financial independence from their former partner, creating an unfair burden to the latter. Scots law dictates a three-year limit on such support post-divorce, but most in England and Wales regard that term as too rigid and brief. Some go so far as to consider the Scots Three Year Rule to be anti-woman, but that’s an outdated concept. Women in the modern age often bring just as many assets to a marriage or union as their male counterparts.

Happily, the Law Commission seems determined to revise the law appropriately. This will take some time; after officially launching a consultation on reforming divorce law (which has remained largely unchanged since the liberalizations of 1969), the Commission won’t publish recommendations until the autumn of 2013. However long it takes, this reform is most welcome – by judges, solicitors, and petitioners alike.

Mark Darcey is the owner and director of an independently owned commercial debt recovery company based in the UK.

Can You Afford A Divorce? (Guest family law blog post)

When we begin to think of divorce, two main aspects immediately come to mind, those being the emotional trauma and the financial distress which often follows. The irony here is worth mentioning: financial difficulties are one of the main reasons a couple seeks a divorce although the results of a divorce may have a much more profound effect on both parties which can far exceed any monetary problems they may have previously had. Let us take a look at a handful of the main expenses associated with divorce proceedings.
The initial cost depends largely on whether or not the divorce is contested. If both people cannot decide how to split various assets, fees can often run into the tens of thousands. Essentially, the more messy the proceedings are, the more money spent. While the so-called “do-it yourself” divorces may make sense for two people in agreement, it is best to hire a litigator should difficulties arise.

What Is An Asset?

An asset is defined as any personal property which has financial value to repay a debt. In the case of divorce, the “debt” can be though of as which party is owed what. Assets include bank accounts, properties, vehicles, stocks and bonds and everything in between. Unless a prenuptial agreement was signed beforehand, these assets will be appraised and divided accordingly. Depending on the situation, this division can come as a great loss to one party while another may vastly increase their financial position.

Children

Should any children be involved, child support must be paid. These payments are determined on a graduated scale in regards to income. Once again, in a “no fault” divorce where both parties amicably split, any payments are conditional and not required as in the case of a contested divorce.

Debt

As assets are carefully examined during divorce proceedings, the division of a couple’s debt also takes place. This can be one of the most difficult parts of the whole process, as determining which debt is owed by which party can cause a great deal of tension. It is an unfortunate fact that during a messy divorce, people are prone to rack up a large debt simply to spite the other half. Should this debt issue not be resolved in a timely fashion the whole divorce will take considerably longer and therefore more costs will build up.

While the divorce proceedings, child support and debt and asset division may cost a great deal, let’s not forget what are called “start up” fees. These costs are the results of having to start over. They may include the down payment on a new residence, moving costs, child care costs, larger utility bills and others.

What Should I Do?

One of the best things to do should a divorce be looming on the horizon is to consult with a lawyer initially for an evaluation of what the overall costs may be. Monitor any credit cards and bank accounts to make certain that debt is not used as a weapon. Finally, both parties need to realise that the more they can find common ground, the less financial burden each will experience in both the short and long term.

This article was written in collaboration with Blanchards Law, specialists in family law.