Tag: property division family law

At Mathews Family Law and Mediation Services, we have wide experience in matters related to divorce property settlement. We take the time to understand your concerns and offer the best possible solutions based on your individual situation. Our property settlement lawyers have an unrivaled reputation and can help you make an informed decision. We understand that separation is a stressful phase and assure you that we will be there for you when you need us. Reaching a mutually acceptable financial agreement in divorce can be daunting. With our bespoke service, we will approach your case to deliver a favorable financial outcome. We are driven by the zeal to ensure a fair settlement and you can count on us even for the most complex cases.

Divorce Settlement in Australia

At Mathews Family Law and Mediation Services, we have wide experience in matters related to divorce property settlement. We understand that even if your finances are separate, there is a need for a formal financial settlement. Our experienced lawyers possess the expertise and understanding to enable you to handle the financial aspects of divorce as successfully as possible. We will outline ways to reach a fair settlement so that you do not face any legal disagreements in the future. Approachable and experienced, our lawyers will help you get the results you want.

Reaching Financial Agreement in Divorce

After you have taken the decision to divorce, sorting out the financial aspects can be a complex task. There is much to consider but with the backing of our expert property settlement lawyers, you can be sure that you will be supported at every step. We take the time to understand your concerns and offer the best possible solutions based on your individual situation. Our property settlement lawyers have an unrivaled reputation and can help you make an informed decision. We understand that separation is a stressful phase and assure you that we will be there for you when you need us. Reaching a mutually acceptable financial agreement in divorce can be daunting. With our bespoke service and clear legal advice, we will approach your case to deliver a favorable financial outcome. We are driven by the zeal to ensure a fair settlement and you can count on us even for the most complex cases. We will ensure that your interests are protected and the divorce proceedings are as amicable as can be.

If you have any queries about family law property settlement, do not hesitate to book a consultation. We are here to answer any questions that you may have and will be happy to guide you through the process of a divorce property settlement.

Property Settlement Lawyers

If you have any queries about family law property settlement, do not hesitate to book a consultation. We will be happy to assist you.

Oftentimes, particularly in circumstances where parties to separation are amicable and consider that they “get along well”, spouses divide their assets according to a personal agreement – that is, an agreement negotiated personally between the parties without the use of lawyers or the Australian courts.

Such an arrangement is not legally binding, and until an agreement is documented in one of the approved manners, the agreement is considered to be an informal agreement.

One of the most significant consequences of not formalizing your property settlement is the possibility that your former spouse is able to make an application for a property settlement in the future – one, two, or even several years later. Being required to undertake a settlement years after your separation can have detrimental impacts on your financial and mental wellbeing and makes it difficult to plan your personal affairs. This is particularly so when as far as you knew, the matter was dealt with and is in the past.

It is important, and a principal consideration of the Australian courts, that parties finalize the financial aspects of their relationship so that they can get on with their lives.

How Do I Formalise A Property Settlement?

Australian family law affords former spouses (or parties to a de facto relationship) two ways in which they can formally finalize a property settlement lawyers. These are:

• 1. Making an application to the court for consent orders; or
• 2. Entering into a binding financial agreement (‘BFA’) (also colloquially known as a ‘pre-nap’).

To reiterate, an agreement is not legally binding unless and until it is documented in one of these manners.

1. Consent Orders

Parties to a separation that have reached an agreement about their property settlement are able to apply to the Family Court of Australia for orders to formalize the agreement so that it is legally binding. This application documents and details:

• The agreement reached by the parties; and
• Its practical application.

When considering an application for consent orders in respect of a property settlement, the Family Court must be satisfied that the orders proposed are just and equitable.

Although the parties are not required to obtain legal advice in relation to an application for orders, it is highly advisable that you do so, as the documents required are technical in nature, and the consequences of an agreement not being documented correctly can be costly and time-consuming.

2. Binding Financial Agreements

Parties to a marriage or de facto relationship can enter into a binding legal agreement (essentially a contract) that details the financial arrangements should their marriage or de facto relationship break down.

A binding financial agreement can be entered into:

• Before marriage
• During marriage
• After divorce

A binding financial agreement is capable of covering:

• Property matters
• Financial support of a spouse (i.e. spousal maintenance), or the termination thereof that is, to prevent a former spouse from making an application for maintenance in the future should their circumstance change. This protection is not afforded solely by consent orders.

Unlike an application for consent orders, in order for a financial agreement to be binding, both parties must seek independent legal advice as to the effect of the agreement on the rights of either party and the advantages and disadvantages thereof. Additionally, and as distinct from an application for consent orders, a binding financial agreement is not required to be deemed as just and equitable by the Australian courts.

Other Important Considerations

You are not required to be divorced to formalize your property arrangements – in Australia, divorce is a largely administrative process and is distinct from property settlement matters.

You should also consider that when you are divorced, you have twelve months from the date that the divorce is granted to bring an application for a property settlement to the court. After this time, ‘leave’ (i.e. permission) from the courts to apply for property orders may not be granted, or may nevertheless be costly and time-consuming to pursue. De facto couples have two years from the date of separation in which to apply to the court for property orders.

Where To From Here?

Our accredited family law specialists are available to assist in all matters pertaining to your property settlement and can advise as to the method that is most suited to your particular circumstances. If you would like to speak to one of our family law specialists about any of your family law matters, please contact us on 1300 635 529 or email enquiries@mathewsfamilylaw-dev.10web.cloud to arrange a free telephone consultation.

Many married Australians own properties in the country and or overseas. What happens to these properties in the unfortunate event of a divorce?

A recent verdict by the Full Court of the Family Court of Australia in Anderson & McIntosh’s (2013) FLC 93-568 case showed.

The Anderson & McIntosh Case

The couple involved in the case, married in Australia in 1988. They shifted base to another country in 2006 and then separated in 2009. Finally got divorced overseas in December 2010. A decree from a foreign country relating to the properties was issued. There were no Orders sought for the couple’s properties in Australia.

The parties reached an agreement on the settlement of the properties in the foreign land, which received approval from the Court in that country. During the same time, a divorce decree was issued. The foreign court’s ruling did not deal with the couple’s properties in Australia.

The wife made an application to an Australian court in relation to the property settlement 12 months after the divorce. The Husband sought to have her application dismissed citing the reason that it had been more than 12 months since the divorce and that the S 44(3) of the Act necessitated a Leave of Court for instituting court proceedings, with respect to the settlement of properties in Australia.

The Husband’s plea was dismissed and so he made an appeal to the Full Court, which was also dismissed.

Overseas Divorce not a “Divorce Order”

The following are the key points from the Full Court verdict in the Anderson & McIntosh case:

• A divorce obtained overseas is recognized under Section 109 of the Family Law Act 1975. But, under the Act, the rights that the parties are entitled to in an overseas divorce are not the same as in the case of a divorce obtained in Australia.
• Section 44(3) of the Act does not recognize an overseas divorce as a “divorce order”. So, a Leave of Court – permission from the Court to take an action – is not needed to begin legal proceedings in Australia even if it has been 12 months or more since the divorce

Options to Reduce Overseas Divorce Impact

The following options could have been explored by the Husband in the above case to reduce the impact of the overseas divorce:

• The Husband could have appealed for property settlement of the Australian properties in the foreign country provided such a plea is acceptable in that country.
• The Husband could have sought orders in relation to property settlement for the properties in Australia at the same time as orders were being sought by the Wife in the foreign country. The Husband could also have entered into a financial agreement as specified by the Act for a property settlement with respect to the Australian properties.
• The Husband could have sought a divorce in Australia.

If you are to undertake getting divorced overseas, it is critical to understand the legalities surrounding property settlement in that country and any country you own properties.

A mutually agreeable decision can be reached only when all facts are available. The assistance of legal experts in such cases becomes invaluable.

Get in touch with the legal experts at Mathews Family Law & Mediation. We are one of Melbourne’s leading law firms with years of experience and a track record of delivering successful outcomes in divorce proceedings, family law property settlement, child support, spousal maintenance, mediation and a range of other family law issues.

Click here to request a free initial consultation or call 1300 635 529 now.

I recently had my first encounter with ‘Bitcoins’, a new and modern form of currency that, like savings, are included in the matrimonial asset pool.

‘Bitcoin’ is a form of digital currency.

‘Bitcoin’ can be used for the payment of goods and services.

In this particular case, the value of the ‘bitcoins’ had significantly increased and was considered by the parties to have been an excellent investment. Much of the ‘bitcoin’ market is speculative, and the value of ‘bitcoins’ is therefore very much subject to fluctuation.

The ‘bitcoin’ investment was valued according to the current market value and included in the assets of the marriage to be divided between the parties.

Whether it ‘is bitcoin’, an e-commerce business or an ‘app’ in the development phase, the team at Mathews Family Law & Mediation Specialists, Australia Divorce, is able to provide you with expert legal advice about your property settlement entitlements.

When a couple divorces (or de facto or same-sex couples terminate their relationship), one of the major decisions to make is “who gets what”.  A pre-nuptial agreement may help make this division easier.  If a couple can decide between them and come up with their own agreement, long court battles can be avoided. If not, the courts have their own way of dealing with property division. In Australia, the courts place all property into one pool and then divide it “equitably” or fairly.  Everything is included and considered joint property by the courts.

The law governing property division(link to “Property Division FAQs”) between spouses or de facto couples is Part VIII of the Family Law Act, 1975 (FLA). The law provides guidelines for the courts to use when dividing property. There are a number of factors the court will consider and which couples should know about.  Below is a list of some considerations.

Think about the children

Before even entering into the fight, divorcing couples should consider their children when dividing up property. It might be more “fair” to sell the marital home, but parents (if they can afford to) should also consider the impact of this change on the children. If parents are going to share parenting time, they should think about what children will need in each home and also divide accordingly. If one parent is moving to a smaller home, he or she might not have space for so much furniture, so why demand it just for the sake of being fair. Both parents should consider the physical and emotional needs of their children, not just what they themselves believe they are entitled to receive. 

Depreciation of ownership rights

Over time, the contribution of the person who brought the property decreases and the contribution of the other partner increases. For example, one person may have purchased the house prior to the marriage, but the other partner paid most of the mortgage on it for the next 20 years.  The investment in the house may be equal by the time the couple splits up and the court will consider this relevant in making an equitable distribution.

The value of the property when it was acquired.

The courts will consider the value of the property when it was brought into the marriage as well as the length of the marriage. There is a difference between a house that was worth $100,000 and one worth $2 million. If a couple was married for only a short period and during that time the marital home tripled in value, how much is the spouse who purchased it prior to the marriage entitled to?  How much is the other spouse, who paid next to nothing in terms of mortgage and maintenance, entitled to?

Non-financial contribution

The courts in Australia today recognize that in many marriages today, one partner may earn a high salary while the other contributes to the marriage in a non-financial capacity. This role has a value that also needs to be measured for property purposes. Many couples decide that one partner will stay home to care for the house and children. This enables the other partner to obtain an education, gain professional experience and earn a higher wage. The stay-at-home parent is entitled to financial compensation for his or her job at home and for allowing the other spouse professional development.

The parent who stays at home makes other large non-financial contributions to the home. By being at home, the family saves thousands of dollars on child care and possibly cleaners and cooks. Finally, the at-home spouse may undertake do-it-yourself jobs, like painting, also worth a good deal of money to the family, but without any actual monetary compensation.  Imagine a spouse who repaints the inside of the house.  Not only has the family saved on the expense of paying an outside contractor but the value of the home has also increased.

Use and maintenance of the property

The court will consider not only the worth of the couple’s property but also how it is used. In one family, for example, the father stays home to care for the children. He is responsible for all household work – cooking, cleaning, gardening, and paying bills. The mother, in turn, works long hours to provide a good income and financial stability.  No doubt the mother “earned” her share of the house, but so did the father. The court might ask who actually needs the home more. In this case, the court may consider equitable distribution to mean that the father keeps the house and the mother receives other property.

Future needs

Section 75(2) of the FLA lays out the factors a court uses to determine the “future needs” of each spouse. The court considers age, health, professional training and ability and property and financial resources, among other factors.  Based on this analysis, the court may decide that a particular spouse is entitled to more of the marital property, to compensate for that person’s weaker ability to earn a living.

Parties to a same-sex couple relationship can make binding financial agreements. A financial agreement can be made either before the relationship begins at any time during the relationship or on separation. The agreement can cover matters such as:

• responsibility for expenses;
• classification of property owned by the parties as either joint or individual property;
• the categorization of property acquired during the relationship as either joint or individual;
• responsibility for debts; and
• division of property and maintenance if separation occurs.

If you have come to an agreement without legal advice, you should obtain advice before you sign anything. Mathews Family Law & Mediation Specialists can provide you with the advice needed to make an informed decision before you enter into a binding financial agreement. We can also assist by drafting the agreement for you to ensure that it covers all the legal requirements that you may not have thought of.

Mathews Family Law is a Melbourne law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send your inquiry online now and we will contact you shortly.

A man met a lady from Russia. He traveled to Russia, married her and brought her back to Australia. The relationship was the only reason for the lady to be in Australia. The parties entered into a Binding Financial Agreement on return to Australia. No copy was given to the wife, the agreement took away many of the entitlements Australian family law would have provided to her. She claimed she signed the agreement when she was under physical, mental and emotional stress from her husband. Despite obtaining independent legal advice prior to the agreement who had correctly told her the agreement was likely to disadvantage her if she signed it, she signed it in any case, the Federal Magistrate concluded the husband’s actions could be recognized as causing duress and were enough to be regarded as unconscionable conduct which allowed for the agreement to be set aside. The Magistrate also noted that the failure to give his wife a copy of the agreement was a breach of the legislation.