Amanda has been in the legal field for over 20 years and is now the principal of Skene Lawyers.
You will find Amanda is approachable, passionate, and highly empathetic to people in crisis. People warm to her ability to place them at ease during stressful times.
She understands people and is a good communicator on all levels. In addition, being organised, patient and assertive with strong negotiating skills this makes Amanda a highly sought-after lawyer.
Amanda is highly efficient and responsive. She is accurate, thorough, and always ten steps ahead of the other side.
She has extensive and up-to-date knowledge of he law and has her own network of legal specialists.
Her perseverance, analytical, and investigative skills ensure your case is always comprehensively researched and presented in the best manner.
Whether it is basic negotiations, mediation or representing you in court, you will find Amanda always delivers.
- Dividing Your Property
- What Steps Does The Court Make When Making Decisions Regarding Shared Property?
- Reaching An Agreement
- Legal Advice
- When to commence negotiations?
- Time Limits
- Partial Property Settlements
- What if the property is in my partners name?
- What if my partner was the main financial provider?
- What is property?
- Parties’ Duty of Financial Disclosure
- Declaration about the existence of De Facto Relationship
- Interim Injunctions to Preserve Property
- What if I leave the house? Do I lose my rights to the property?
- What If my parents or friends lent us money to buy the house?
- Capital Gains Tax, Income Tax, GST and Stamp Duty
- Is it an Asset or Financial Resource?
- Receiving An Inheritance Late Or Post Separation
- Is Superannuation Included?
- Bankruptcy And Family Law Proceedings
- Creditors and other Third Parties
- Setting Aside or Varying Property Orders
- Enforcement of Property Orders
You can attend to the division of your property immediately upon separation. You do not need to be divorced to divide your assets.
Separation is a highly stressful time. It is, therefore, best to agree sooner than later regarding the split of your assets and liabilities.
What steps does the Court make when making decisions regarding shared property?
There is a four-step approach under the Family Law Act.
Identify and value all property of the relationship, including debts. Property includes property you attained before or after the relationship.
Take into account each party:
- Financial contribution made directly, or indirectly by, or on behalf of a party, or child of the marriage, to the acquisition, conservation, or improvement of any of the property of either party (whether or not the property has ceased to be the property of that party);
- Any non-financial (for example, domestic duties or renovation works to a property) contribution (made directly or indirectly, as above);
- The contribution, by a party to the welfare of the family, (the parties and any children), in the capacity of homemaker, the parent or otherwise;
- The effect of any proposed order upon the earning capacity of either party;
- Any relevant matters under s 75 (2) 9or s 90SF (3));
- Any other order made under the Act affecting a party or a child; and
- Any child support that a party has provided or is to or might be liable to provide in the future.
- Whether a party has wantonly or recklessly caused the deterioration of an asset
Other factors to be taken into consideration are:
- The age and state of health of each party;
- The income, property, and financial resources for each party and the physical and mental capacity of each for appropriate gainful employment;
- Whether either party has care or control of a child of the marriage;
- The commitments of each party that are necessary to enable the party to support;
- Himself or herself; and
- A child or another person that the party has a duty to maintain.
- The responsibilities of either party to support any other person;
- The eligibility of either party for a pension, allowance, benefit or superannuation;
- A standard of living that in all the circumstances is reasonable;
- Extent to which payment of maintenance would increase the earning capacity of an applicant by enabling them to undertake a course of education or training or establish themselves in a business or otherwise to obtain an adequate income;
- The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
- The extent to which the applicant has contributed to the income, earning capacity, property, and financial resources of the respondent;
- The extent to which the duration of the marriage affected the applicant’s earning capacity;
- The need to protect a party who wishes to continue their role as a parent;
- Financial circumstances relating to cohabitation with another person;
- The terms of any property order;
- Any child support that a party has provided or is to provide, or might be liable to provide in the future for a child of the marriage;
- Any fact, or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account;
- Any terms of any financial agreement that is binding on the parties
Once the Court has considered the first three above steps, it must decide precisely how the property is to be divided, that is, who gets what.
It must then consider whether that proposed property division is fair and reasonable in all circumstances.
Reaching an Agreement
If both parties can reach an agreement, that agreement can be submitted to the Court by way of Consent Orders. The Courts will review the Consent Orders, and if satisfied that they are just and equitable, they will approve your agreement.
It is essential to have the division of your assets finalised in the form of Consent Orders. The reason for this is that, pending the facts of the matter, Consent Orders will allow the parties to sell and or transfer property without having to pay stamp duty and or capital gains tax.
Legal advice is vital when determining the division of your assets and liabilities.
Suppose you wish to finalise your property settlement yourself. In that case, you should still invest in your future and spend an hour with an experienced lawyer to discuss your arrangements. This will ensure that you have not missed anything, ie, taxes, etc, that the agreement has not taken into account.
Ensure you know your rights and what you are entitled to in the Property Pool. In addition, ensure that you know the consequences of your proposed agreement and not be hit with financial surprises at a later date because of the way your agreement is structured.
Too many times, parties come for advice after entering into Consent Orders realising that such agreement was to their detriment. Unless you can prove circumstances such as misrepresentation or fraud, you may find it challenging to have your property orders varied and thus re-litigated.
When to commence negotiations
If there is no chance of reconciliation, it is advisable to commence negotiations immediately.
If you wait, future post-separation income, assets, and liabilities become entangled with the marital/ de facto property pool. Therefore, the longer you leave it, the more complicated and expensive it becomes in untangling everything.
You must attempt to negotiate and settle the distribution of your property within 12 months of being divorced. If you were in a de facto relationship, it must be within two years from your separation date.
Suppose you cannot reach an agreement with your former partner. In that case, you must apply to the Court for Property Orders before the expiration of the above time frames.
If the time to file an Application to the Court for Property Orders has expired, you can seek leave from the Court to file.
You will, however, have to have a sufficient reason as to why you wish to file outside of the time frame, for example, hardship. Alternatively, your former partner may consent to the application.
There is a considerable emphasis on the parties to settle out of Court. There are various court rules and requirements that each party must comply with before applying to Court for property orders. These requirements must be performed within a reasonable time frame and remain cost-effective to the parties.
Since changes in 2021, the Courts now require parties to be cost-conscious. Therefore, it is not acceptable to unnecessarily rack up costs for the other party. Parties and their lawyers are now required to address relevant issues only rather than focus on the ambit and trivial claims.
Parties must comply with their obligations to continually provide financial disclosure promptly. Accordingly, unnecessary and protracted evidence is discouraged.
Aggressive and unnecessarily adversarial conduct will be penalized.
Consequences of the above offending behavior may attract potential cost orders against that party or their legal practitioner.
Partial Property Settlements
If you are asset-rich but cash-poor, you can effect a partial property settlement through agreement, enabling you to free up some financial resources.
Suppose your former partner refuses to enter into a Partial Property Settlement. In that case, you can apply to the Court for a Partial Property Settlement. Partial Property Settlements are not always granted and are dependent upon whether you can evidence that there is enough capital in the property pool for this to occur.
A Partial Property Settlement is helpful when one party cannot afford day-to-day expenses, legal representation or wishes to purchase a new home. Or it may even be beneficial if a property is unoccupied, waiting to be sold, incurring unnecessary costs.
Any amount received by a party, as an early payment, will be considered in the final figures.
What if the property is in my partner’s name?
It does not matter if assets are solely in one party’s name and not the other. The property is considered joint property and will form part of the property pool for disbursement.
What if my partner was the main financial provider?
It does not matter that one party was the main financial provider and the other was not working. Each party has a right to property acquired during the relationship depending on the facts.
What is property?
- Real Estate, including the family home and investments;
- Money held as cash or in bank accounts;
- Insurance Policies;
- Financial gains, i.e. the lotto;
- Superannuation; and
- Any other assets; and
- Debts including mortgages, loans, credit cards, tax debts, HECS debts and personal debts.
Property includes assets and liabilities owned individually, jointly or with a third party, or by family trust or company.
Parties’ Duty of Financial Disclosure
Parties have a duty to the Court and each other to make full and continuing disclosure of their financial circumstances.
In usual circumstances, financial disclosure includes
- Bank account statements including credit card and loan accounts which parties have operated, or in which they have or have had an interest in, for the previous 24 months.
- Current income details, including employment contracts and their three most recent payslips.
- Any other documentation relevant to determining income, expenses, assets, liabilities, and financial resources.
- Tax assessment and return documentation for the past three years.
- Any business, trust or partnership in where you or your separated partner have an interest in (including overseas):
- For each instance, financial statements such as profit and loss accounts, balance sheets, and tax returns for the last three financial years;
- As well as Business Activity Statements for the last 12 months.
- If an interest is held in a corporation, the most recent annual return, listing directors and shareholders, and the corporation’s constitution.
- If there is an interest in a trust or a party is the trustee or appointor, tax returns for the last three financial years, and the trust deed.
- Where parties are in a partnership, the partnership agreement, including amendments. Where the market value is not agreed, a market appraisal of any item of property in which a party has an interest.
- Details of any superannuation funds values and interest.
- Any assets such as motor vehicles, boats, jewelry, antiques, and furniture in their possession or have disposed of since separation requires an estimate.
- Details/records of any investments, including stocks and shares.
- Social security pension or payment details.
- Details/records of long service leave accrued.
- Details/records of overtime worked in the previous 12 months.
- Details/records of any life insurance or disability insurance.
- Disclosure of any beneficiary interest in an estate.
Declaration about the existence of De Facto Relationship
The respondent often disputes the existence of a de facto relationship and thus disagrees that a property settlement should be affected.
Even in the instance where your partner is married to someone else or in another de facto relationship, your relationship can legally exist as a de facto relationship. Therefore, you can be involved in more than one de facto relationship that is of differing or same-sex.
Factors considered when determining a de facto relationship include, but are not limited to:
- Length of relationship
- Nature and extent of their common residence
- Whether a sexual relationship exists
- Degree of financial dependence and support
- Ownership, use, and acquisition of property
- Degree of mutual commitment to a shared life
- Care and support of children
- Reputation and public aspects of the relationship
Interim Injunctions to Preserve Property
If you are concerned your former partner is selling or hiding assets solely in their name, you can obtain orders from the Court to prevent them from doing so.
For example, you could place a Cavate over the property, preventing them from selling it. Or, you could seek orders to inspect and seize documents in their possession, preventing their destruction.
Injunctions granted by the Court are limited to a real danger that a property claim may be defeated or prejudiced.
What if I leave the house? Do I lose my rights to the property?
No, you do not lose your rights or share of the property because you left the house.
What if my parents or friends lent us money to buy the house?
When parents have lent money to the parties to purchase property and then separate, the money lent often ends up in dispute as to whether it was a loan or a gift.
Each case is different; however, the Courts will seek evidence of a loan versus it merely being a gift. An example would be a loan contract, paid repayments, or usual indicias of a loan.
Suppose it is determined to be a gift. In that case, that money advanced will be considered an extra contribution by that party unless evidence to the contrary establishes that it was solely not intended for that one party.
Capital Gains Tax, Income Tax, GST, and Stamp Duty
A property settlement may incur any one or more of these taxes. Therefore, parties must consider this when drafting their agreements so that one party is not lumped with the liability to pay the tax.
Is it an asset or financial resource?
Determining the difference between an asset and financial resources can, at times, be the root of many disputes.
The following interests have been determined by the courts not to be property but a financial resource:
- Goodwill of a personal business, therefore not commercial. For example, a barrister;
- Long service leave if likely to be cash;
- A future pension entitlement;
- Anticipated inheritance if the testator has lost testamentary capacity;
- Accrued long service and annual leave if not paid;
- Personal goodwill (earning capacity);
- Overseas superannuation;
- Assets of a trust controlled by a spouse’s parent.
Receiving an inheritance late or post-separation
Suppose a party received an inheritance close to the date of separation or, after separation. In that case, that party can argue that the monies be considered as post contributions.
Is superannuation included?
Yes, superannuation is to be attributed to the property pool and taken into account when finalising figures. However, sometimes parties may decide to take a more significant portion of superannuation rather than tangible assets or cash.
Bankruptcy and Family Law Proceedings
Suppose property has already vested in the bankruptcy trustee of a party. In that case, the Court may make an order, altering the trustee’s interests, ordering the property to be transferred back to the non-bankrupt party. Upon application, the trustee may also be restrained from distributing dividends amongst creditors. Accordingly, the four-step process used when determining the distribution of property, as mentioned above, still applies when determining the distribution of property where one or two of the parties are bankrupt.
Creditors And Other Third Parties
Any person may seek leave to intervene in a property settlement. Once granted leave by the courts, they are considered a party to the proceedings with all the same rights, duties, and liabilities.
Setting aside or varying Property Orders
The Court may set aside property orders if it is satisfied:
- a miscarriage of justice by fraud, duress, suppression of evidence, including failure to disclose financial records or by the giving of false information or any other circumstances.
- the order is no longer practical due to circumstances arising since they were first made;
- where a party has defaulted under orders and as a result of that default, the orders are no longer practicable, or it would not be just and fair for the orders to remain in effect;
- that since the orders were made, exceptional circumstances relating to the care, welfare and development of a child where the child or applicant will suffer hardship if the order is not set aside or varied; or
- a proceeds of crime order having been made against the parties’ property or directly against a party.
Enforcement of Property Orders
The most efficient order to enforce orders is to anticipate that there will be a requirement to enforce orders. Failing this, a party can apply to the Court for enforcement orders if the other party fails to comply with an order.
Disclaimer: The above information is not to be taken as advice as each matter is unique to its own set of circumstances. We highly recommend that you seek legal advice before you commence any action regarding your matter.
For clarification, please contact us on 0431 336 999 or firstname.lastname@example.org for a free 15 minute consultation.
Our Principal, Amanda Skene, is experienced in the issues surrounding family law and can help navigate you through this delicate and emotional path.
Contact Skene Lawyers now to obtain the advice you need.