Family Law

We provide legal assistance and representation in all types of Family Law matters with an outcome driven focus.

 

We offer up front honest advice about your rights and prospects, and your likely legal costs and outlays. We can tailor a fee arrangement to suit your needs. We are mindful that when you separate, you may not have ready access to funds and in certain situations we can accept payment of our fees on a deferred basis.

 

Family Law & De Facto Property Settlements Explained

 

Are there time limits to apply for a property settlement with the Family Court?

Yes.

 

For married couples, the Family Law Act 1975 states that you need to apply for property settlement within 12 months from the date of divorce.  If you wait longer than this time limit, you must apply for leave to the court to extend the time period.

 

For de facto couples, the Family Law Act 1975 states that you need to apply for property settlement within 24 months from the date of separation.  If you wait longer than this time limit, you must apply for leave to the court to extend the time period.

 

How can I tell which assets I am entitled to?

The Federal Circuit Court or the Family Court (for more complex matters) takes into account a number of considerations in determining what each party is entitled to from the ‘matrimonial pool of assets.’ These are often referred to as section 75(2) factors as this is the section of the Family Law Act 1975 that prescribes the factors that are taken into account.

 

Relevant considerations may include:

 

  1. The assets held by each party together with their value at the commencement of the relationship;
  2. Any gifts, inheritances, windfalls and lump sum payments received by either party during the period of marriage or since separation;
  3. Financial contributions made by each of the parties to the acquisition, conservation and improvements of assets and to the living costs of the family;
  4. Non-financial contributions made by the parties to the acquisition, conservation and improvement of the assets including contributions made by or on behalf of a party to the marriage;
  5. The contributions made by a party to the marriage to the welfare of the family including in the capacity of homemaker or parent.
  6. The future earning capacity of the parties.
  7. The amount of time that any children will spend living in the parties respective households and the associated cost of this and the impact it will have on the parties income earning capacity.

 

When distributing the assets of a married couple, the court will not only consider past contributions but also and often most importantly the parties respective future needs. 

 

The determination of any parenting issues and the arrangements for the care of the children will often have an important role in determining the appropriate division of matrimonial property.

 

You should seek legal advice to determine what you are entitled to and we are more than happy to assist you.

 

I did not get married to my partner; instead we lived together in a de facto relationship.  The relationship has now ended. What happens now with the assets and property?

Changes in recent years to the Family Law Act 1975 means that your rights are now aligned to those of married couples so the same or very similar considerations will apply.  You should seek legal advice to determine your rights.

 

What property is included?

Matrimonial property includes ALL the property which you and your ex-partner have. It does not matter whether it is in joint names, just in one name or in the name of another entity altogether such as a company or trust.  Property could include real estate, superannuation interests, employment entitlements, investments, intellectual property, debentures, trust entitlements, lottery winnings, gifts from relatives, inheritances and household possessions.  Property also includes debts such as mortgages, personal loans, investment loans and credit cards.

 

What about our jointly owned house?

Are you separating from your spouse or partner but own a property together? At Jeff Horsey Solicitor we offer both family law and conveyancing services under the one roof. Whether you are selling or transferring the property to the other party, we can prepare the Consent Orders or Financial Agreement and the Transfer Documents for settlement of the house.

 

What other things should I think about after separation?

You should check your Will, as most people usually give their estate to their partner, or even have their partner as the executor of their estate. If you are no longer in a relationship with them it is important to review your Will to reflect this change.

 

We recommend that you review your Will to confirm that it still reflects your wishes after separation. You should review your Will every two to three years or when a major event happens.

 

Major events can include: –

 

  • A change in your major relationships, for example if you enter into a defacto relationship, you get married, separated or divorced;
  • Where there is a death of a relative that you have included in your Will; or
  • If you have children, including adopted or foster children, that are not included in your current Will.

 

You should also review your Will when you make major changes to your assets, for example when you buy or sell considerably large assets which may be dealt with in your Will.

 

You should also review the manner in which you and your ex-partner hold assets. If assets are held as joint tenants, then upon the death of one joint owner the other joint owner automatically becomes the owner of the property even if your will says otherwise and even if you are in the process of obtaining a matrimonial property settlement.

 

We can advise you of strategies to guard against these situations and protect your assets.

 

My ex partner and I are in agreement on how we should split our property and what arrangement we want in place for our kids. How do I formalise this?

There are a number of options open to you, including making an Application for Consent orders or entering into a Binding Financial Agreement under section 90 of the Family Law Act 1975 (or a BFA as they are commonly referred to).

 

The Courts are busy enough and prefer for you to resolve your matters between yourselves if you can. Accordingly, there are ways to formalise orders and agreements by consent. There are some formal requirements, such as that both parties receive independent legal advice and that an independent advice certificate is attached to the documents.

 

If you have reached agreement, then you should have it formalised in a binding way. Even if things are amicable now, they might not always be (particularly if you re-partner or win the lottery) or circumstances change, such as termination of employment, bankruptcy or illness.

 

By formalising your agreement with Consent Orders or a Binding Financial Agreement, you have the certainty that the agreement is final and binding and that any future property that you acquire is not the subject of a claim from your ex-partner or former spouse.

Any property that is to be transferred pursuant to such an agreement will usually also be exempt from the payment of Stamp Duty with the Office of State Revenue

 

 

 

I’ve been through all this once before and now am in another long-term relationship. What can I do to protect my assets?

A Cohabitation Agreement can be entered into to protect yours and your partner’s assets. No two situations are ever the same and we can tailor agreements to suit your needs. These agreements enable both parties for the future benefit of themselves and the children of their previous marriages or de facto relationships, to preserve certain assets of theirs from future claim by the other.

 

Where can I get more information?

Please contact our office to schedule an initial consultation with one of our Solicitors.

 

What happens at my first consultation with you?

You will have half an hour to talk to a Solicitor about your situation.  We will discuss the circumstances of your situation, the possible courses of action you may take and any further fees should you wish to proceed. There is no obligation to continue with us after the first consultation.

 

No matter what stage you are at, whether you think you might soon be going to separate, if you have recently separated or even if you are currently involved in Family Law proceedings in either the Federal Circuit Court of the Family Court of Australia, we have experienced solicitors who can give you the right guidance and representation throughout this difficult time.