Property
The Family Law Act sets out a process to determine how property will be divided for married, de facto and same sex couples.
All property owned by the parties either personally or jointly, must be considered in the net matrimonial assets to be divided between them. The value of those assets is taken as at the time that the settlement occurs. This includes property that may have been acquired prior to marriage or commencement of the relationship, or property acquired after separation.
The first step is to calculate the net matrimonial assets.
The second step it to look at the contributions of each of the parties and a preliminary adjustment of assets is made in accordance with those contributions, both financial and non financial, during the relationship.
The next step is to assess whether or not an adjustment should take place because of future needs of one or other of the parties. This may be because one party has the care of a child or children or there may be a significant disparity of income between the parties.
The fourth and final step is to make a division of the assets which is just and equitable in all the circumstances.
Married couples
An application for property settlement must be made within 12 months of obtaining a divorce. Otherwise, it may be necessary to seek the leave of the Court to institute proceedings for property settlement. We can assist you with such an application.
De facto couples
Persons in a de facto relationship (who separated after 1st March 2009) come within the jurisdiction of the Family Law Act and have the right to make an application for property settlement if they satisfy certain conditions including living together or having child or by making a significant contribution to the other party’s property during the relationship;
If you do not qualify under the Family Law Act you may be entitled to make a claim under the Property Law Act in Queensland.
Please note that there are certain residency requirements. We can assist you in determining whether you qualify to bring an application.
Binding Financial Agreements & Pre-nuptial and Cohabitation Agreements
Prior to marrying or moving in together, parties may agree to clearly define how their property is to be divided in the event of relationship breakdown.
Whether or not you have an agreement is an extremely personal decision. An agreement will often be sought where one party has significantly greater assets than the other, or both parties wish to ensure that in the event of separation their division of assets will be clearly defined. Often, one or both of the parties will want to ensure that assets are preserved for children of a prior marriage or relationship in the event of separation.
The requirements for a Binding Financial Agreement are set out in the Family Law Act. The requirements must be strictly complied with. Our agreements comply with all of the requirements under the Act.
It is essential that both parties be absolutely candid about their financial situation. It is essential that both parties receive independent legal advice from an expert who is able to discuss with the party possible consequences of their proposed agreement.
The agreement must contain a list of all assets and liabilities, income and expenditure, and financial resources of each of the parties. Failure to provide complete disclosure may result in the agreement being set aside at some stage in the future.
It is necessary to try to make your agreement as fair and reasonable as possible and to take into account future possibilities such as the birth of children, as the Court can set aside a Financial Agreement if it is shown that a child will suffer hardship.