archived old blogs

Setting the record straight        

10 February,2020

What happens after my ex partner and I have come to an agreement about the property?

How do I stop my ex from coming back for another “bite of the cherry” ?

For your agreement to be binding, you will need to formalise it. It won’t be binding, until its formalised.

 There are 2 ways to formalise your property agreement: 

  1. Consent Orders or
  2. Binding Financial Agreement 

Consent Orders

Consent Orders have to be filed in the Family Court. These are difficult to draft and should be prepared by a solicitor.There is no need for you to attend court. The Family Court Registrar will look at your agreement, including all the detail you provide in your Application for Consent Orders (a brief history, details of your children, all of your current financlal detail).

Consent Orders have to be approved by the court. The court will not approve them, if they are manifestly unjust. If they are “on the borderline” between fair and unfair, or there is some confusion in the paperwork, the Court will send you “Requisitions”, which will usually include a request for “A Statement of Agreed Facts” signed by both parties.

 

Binding Financial Agreement

If you know that your agreement may not be approved by the Family Court, (this may be, because you suspect that it is not really fair, or that your agreement won’t sever the financial ties you both have ) or if you simply want to speed up the process, you can arrange for a Binding Financial Agreement.

This is often called a “BFA”. A BFA does not have to be fair, but it does require full financial disclosure and each party must obtain legal advice from their own solicitor. This makes a BFA more expensive than Consent Orders, but a BFA can be drafted quickly and does not have to be lodged with the Court. 

Consent Orders and BFA’s tend to finalise your property settlement.

However, in extreme circumstances, each party could seek additional property through the courts. This could happen, if one of you becomes seriously incapacitated or where one party has had a huge windfall, such a a Tattslotto win. Fraud could open an agreement up to being declared void by the Court or where one party has put too much pressure n the other to sign up, etc. 

Don’t let this make you anxious. In any event, It is usually safer to have a properly formalised agreement, like Consent Orders or BFA. If in doubt, seek legal advice.

 

Warning— don’t rely on the legal information on this website. Seek your own legal advice, concerning your unique set of circumstances. We are providing legal information only.

 

 

Warning…this website contains legal information only.

You must obtain legal advice about your individual

Matter before acting.

Search for   “archived old blogs” in the search engine and you will find the old blogs

 

 

 

Setting the record straight        

10 February,2020

What happens after my ex partner and I have come to an agreement about the property?

How do I stop my ex from coming back for another “bite of the cherry” ?

For your agreement to be binding, you will need to formalise it. It won’t be binding, until its formalised.

 There are 2 ways to formalise your property agreement: 

  1. Consent Orders or
  2. Binding Financial Agreement 

Consent Orders

Consent Orders have to be filed in the Family Court. These are difficult to draft and should be prepared by a solicitor.There is no need for you to attend court. The Family Court Registrar will look at your agreement, including all the detail you provide in your Application for Consent Orders (a brief history, details of your children, all of your current financlal detail).

 

Consent Orders have to be approved by the court. The court will not approve them, if they are manifestly unjust. If they are “on the borderline” between fair and unfair, or there is some confusion in the paperwork, the Court will send you “Requisitions”, which will usually include a request for “A Statement of Agreed Facts” signed by both parties.

 

Binding Financial Agreement

If you know that your agreement may not be approved by the Family Court, (this may be, because you suspect that it is not really fair, or that your agreement won’t sever the financial ties you both have ) or if you simply want to speed up the process, you can arrange for a Binding Financial Agreement.

This is often called a “BFA”. A BFA does not have to be fair, but it does require full financial disclosure and each party must obtain legal advice from their own solicitor. This makes a BFA more expensive than Consent Orders, but a BFA can be drafted quickly and does not have to be lodged with the Court. 

Consent Orders and BFA’s tend to finalise your property settlement.

However, in extreme circumstances, each party could seek additional property through the courts. This could happen, if one of you becomes seriously incapacitated or where one party has had a huge windfall, such a a Tattslotto win. Fraud could open an agreement up to being declared void by the Court or where one party has put too much pressure n the other to sign up, etc. 

Don’t let this make you anxious. In any event, It is usually safer to have a properly formalised agreement, like Consent Orders or BFA. If in doubt, seek legal advice.

 

Warning— don’t rely on the legal information on this website. Seek your own legal advice, concerning your unique set of circumstances. We are providing legal information only.

 

 

Warning…this website contains legal information only.

You must obtain legal advice about your individual

Matter before acting.

Search for   “archived old blogs” in the search engine and you will find the old blogs

 

Setting the record straight        

30th January, 2020 

Hello, welcome to my blog. This series “Setting the Record Straight” will help those, who have questions about family law in Australia.

The question for today’s blog is:

How do I work out what I am entitled to, out of the property settlement?

  • How do we split our superannuation?

This is far more complicated than you might think. There is no mathematical formula- just many factors to consider. And opinions will differ.

( For your interest,  the main thrust of the law on this topic  can be found in Sections 79 and 75(2) of the Family Law Act 1975. A plehora of cases are

These are the factors that will be relevant, in working out a property split:

  • What appears to be just and equitable in the circumstances?
  • How much did each of you own and owe at the start of your relationship?
  • Did each of you receive any inheritances or lump sum gifts?
  • How much did each of you work and earn during the relationship?
  • Did either of you do physical labour say, on the house and garden, which enhanced its value- landscaping, renovations, pergolas, garages etc
  • Do either of you have a disability or illness?
  • Where will the children live most of the time?
  • How long was your relationship?
  • How old are each of you now?
  • How much did each of your parents and extended family in money or in kind?
  • Did you borrow money from family, which has to be repaid?
  • How many children do you have?
  • Do the children have any disabilities?
  • Do either of you expect a windfall in the near future?
  • Was the level of family violence so high, that it was hard for you to function properly?These are all relevant questions, which have to be considered at length.In a nutshell, the Family Law Courts look at
    • Contributions by each of you and your families of origin, whether they be money or labour, or any other inkind contributions.
    • Whether the level of family violence impacted on either of your contributions that you would have liked to makeWhat the future holds for each of you- ill health, imminent old age, low or high earning capacity, needs of children, debts to repay and so on.

    These lists are just the beginning…..

    Few legal practitioners will commit to giving you an estimate of what exactly you are entitled to. There are so many variables.

    At Do Your Docs, we are happy to guide you towards working out what would be a fair range of outcomes

  • . This will equip you to engage in mediation  effectively.Superannuation SplittingThe first thing to be aware of, is that this does not involve a cash payment. Funds are transferred from one superannuation fund to another. Also, be aware that the wording of these supersplitting orders is quite complex.You will definitely need legal assistance to do this.
  • Amongst other things, the super fund must approve of the orders you have proposed.The “usual” superannuation split is 50/50. That is, for example, if your total superannuation, as a couple, amounts to $100,000 and, say the wife has $20,000 and the husband has $80,000, then $30,000 would be transferred out of the husband’s fund, so that each party ends up with $50,000. If either party had superannuation at the beginning of the relationship, that amount is usually deducted, so that ONLY superannuation accumulated during the relationship is split.

 

Setting the record straight                       20th January, 2020

Welcome to my blog. I have been working as a family lawyer since 1985 and have helped thousands of people, going through separation. I have often been surprised by how little understanding  people  actually have, when it comes to our own family law.

There is so much misinformation out there, that it is time to set the record straight!

When my clients first separate, they are usually very confused about the family law system. If they have never been through a major separation or divorce before, and they usually want to know

 

Do you divorce first or settle your property first?

 

You are entitled to do a property settlement straight after separation. When you do it, depends on your particular circumstances.

You will regret it, if you hastily accept less than you are entitled to. Life as a single parent can get quite difficult and you will need all the resources you can marshall, to equip you for the costly business of bringing up children.

You may find that, for some reason your partner feels guilty about the separation. This may they influence their decision to make a very generous offer. Accept that generous offer, sooner rather than later, if you can. As time goes by, people tend to drift away from each other and become a little harder, especially, when there is a new partner involved.

 

Time limits in Australian family law.

There are strict time limits for property settlements.

if you are not married, but living together in a domestic relationship:You must settle your property issue or bring a court action for property orders within 2 years of separation (mind you, there is such a thing as separation under the one roof– seek legal advice, if this applies to you.

If you are married- you have until one year after your divorce becomes absolute

 

While on the topic of a new partner. Don’t be surprised if your relationship dynamics change, when a new partner for either of you comes onto the scene. that is totally normal, and you may need to be very flexible to cope.

Never hesitate to arrange counselling, when going through separation. It is a time of major grief for both of you and you will both need help to navigate it.

Take special note of the time limits in family law!

In my next instalment I will be answering the question

HOW do I work out what I am entitled to out of the property? 

(Previous blogs can be accessed by typing “archived old blogs” into the search engine)

WARNING

This website contains legal information only. Don’t act on the basis of its contents, without obtaining further legal advice.