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Children and/or Property Disputes
Mepstead Lawyers provide cost effective representation in Family Law and De Facto property disputes. This area of law is ever changing and is further complicated by the emotional and economic impact of these disputes between family members. Our team is well aware of these issues and has developed a strong reputation for expert advice in a sensitive and professional manner.
We will be open with you about your rights, and anything you discuss with us as your family law lawyer is covered under the attorney-client privilege. This means that anything you tell us is confidential and protected from disclosure later, even if you choose not to retain Mepstead Lawyers as your family law lawyers.
Intervention Orders can be a complex and costly situation whether you are the Aggrieved Family Member (AFM sometimes referred to as the Applicant) or the Respondent. It is essential that you receive timely legal advice as to your rights and obligations. Whilst an Intervention Order is a “civil” matter a breach is a serious criminal offence that the Courts do not take lightly. Mepstead lawyers can assist you in negotiating an amicable resolution in the best interests of all parties whether it be an undertaking, an agreed or limited Order or a Order by consent with no admissions or contesting an application at trial.
After the initial consultation we will present you with initial advice or options to enable you to make an informed decision whether to pursue the matter further.
Binding Financial Agreement?
A Financial Agreement can be made either a married or DeFacto couple or by a couple intending to be married or entering into a DeFacto relationship:
De Facto couples
- Before entering into a de facto relationship (s90UB);
- During a de facto relationship (s90UC); and
- After the breakdown of a de facto relationship (s90UD).
- Before entering into a marriage (s90B);
- During a marriage (s90C);
- After a divorce order has been made in relation to a marriage (s90D).
What is the effect of a Binding Financial Agreement?
A Binding Financial Agreement will prevent either party to the relationship from making an Application to the Family Court for the division of property. It also allows the parties of the relationship to determine how to divide their property and financial resources in the event of separation.
What are the benefits of making a Binding Financial Agreement?
Binding Financial Agreements allow the parties to determine how the property and financial resources of either or both parties will be dealt with in the event of separation and can also set out maintenance rights of either party in the event of separation. Financial Agreements are useful in protecting assets (estate planning) especially if either or both parties have children from a previous relationship and they want to protect their assets for their children in the event of incapacity or death.
By entering a Binding Financial Agreement, each party to the relationship can decide who will receive their assets in the event of incapacity or death and pursuant to section 90H and 90UK of the Act, a Financial Agreement or Part VIIIAB Financial Agreement will continue to operate in the event of incapacity or death of a party to the agreement and will be binding on the legal personal representatives of that party’s estate (executors, administrators and attorneys).
Some of the benefits of making a Financial Agreement are as follows:
- Fast and effective as Binding Financial Agreements can be completed within seven (7) days;
- Instructions can be taken via email and only one (1) attendance at our office is required;
- A Financial Agreement can avoid conflict and costly litigation in the event of separation;
- Your wishes will be carried out in the event of incapacity or death;
- No requirement to attend Court when making a Financial Agreement;
- A Binding Financial Agreement does not need to be lodged with the Court for approval; and
- Your wishes will be carried out in the event of incapacity or death.
What are Consent Orders?
Consent orders are a written agreement that are formalised and approved by the Court and thus are legally binding. There is generally no need to attend Court when you file orders by consent or consent orders.
Consent orders can deal with the following:
- The transfer or sale of property
- The splitting of superannuation
- Spousal maintenance.
Please note: consent orders cannot be made about property matters for de facto couples or for child support departure applications.
Consent orders are filed with the nearest Family Law Registry, and there is no filing fee involved. Importantly the court must be satisfied that the orders are properly drafted and that the terms of the agreement are “just and equitable”, before it will approve them.
What is a Property Settlement in court?
If no agreement can be reached then an application for property orders must be submitted to either the Family Court (FCA) or the Federal Circuit Court of Australia (FCCA). An application must usually be made within 12 months of your divorce becoming final. The decision is then made through a court hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously and can lead to severe penalties.
How do you split your Superannuation?
As set out in part VIIIB of the Family Law Act, superannuation is dealt with separately to property orders. There are two elements to splitting superannuation: These are:
- How to value superannuation interests (accumulated and potential).
- How to split payments.
Even though superannuation comes under a separate part of the Family Law Act, it is still taken into account in the overall property settlement, and is subject to the same principles, such that:
- All superannuation is taken into account, regardless of when it was acquired (before or during marriage / after separation).
- It is not automatically subject to a 50/50 split. The Court will decide based on what is “just and equitable”.
- It is important to note that splitting superannuation does not enable you to access it any earlier.
It is still subject to superannuation laws (accessible after retirement age).
What are the Property settlement Options?
There are a number of property settlement options for de facto couples. Filing for property orders with the courts can be expensive, time consuming and stressful. For this reason it is preferable to try to reach an agreement outside of court.
Some de facto couples choose to draw up domestic relationship agreements before or during their relationship, which are similar to the well-known “prenuptial” agreement. In a similar way, separation agreements can be drawn up in anticipation of, or immediately following a relationship breakdown. For these agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing (refer to Binding Financial Agreements paragraph).
In the case that there is a dispute, it is always advisable to enter into mediation. If an agreement can be made, it is then possible to apply for Consent Orders through the Court, which formalises the agreement. This is dependent on whether the court is satisfied that the agreement is “just and equitable” to both parties, and that both parties have sought independent legal advice. If an agreement cannot be reached, you can apply for property orders.
For situations where there has been no prior financial agreement, parties of a de facto relationship or a close domestic relationship can apply for property orders. The decision is then made through a court hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously.
The Court considers four key factors in assessing property settlements.
- The Court will ascertain the net asset pool of both parties. The net asset pool is the total value of all the assets owned by either or both parties. The net asset pool includes anything acquired before or during the relationship, as well as after separation. In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements. Ascertaining the net asset pool can be highly complicated. Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values.
- The Court will assess the contributions from both parties (both financial and non-financial). There are many types of contributions that may have been made by either spouse. The Court considers all of the following:
- Financial contributions
- Non-financial contributions (as a homemaker or primary carer of children)
- Gifts, bonuses and inheritance
- Initial contributions (assets attained before marriage).
- The Court will assess the future needs of both parties: The Court takes into account many factors when deciding on the future needs of both parties. These include:
- Age and health
- Capacity to earn money
- The property and assets of each party
- New relationships (and new financial circumstances)
- Future parenting responsibilities (care and support).
- The Court will consider the practical effect of the proposed property settlement, and whether it is “just and equitable” to both parties. The decision is made taking into account all of these factors.
Generally, superannuation is not included in a property settlement between de facto couples. However, a Court is likely to take it into account when assessing the financial resources of each party.