Property settlements
The Family Court is empowered to make any order which it considers appropriate altering
the interests of either the husband or the wife in any property owned by either
or both of them. Set out below are some of the matters that the Court will consider.
It is not intended to be exhaustive and you should understand that each case will
be determined on its merits and that every person considering separation ought to
seek professional guidance from a solicitor who practises in the Family Law jurisdiction.
The property which the Court considers is that which has been brought into the marriage
or acquired during the marriage or after separation. The property brought into the
relationship by either party is treated somewhat differently than that acquired
during the relationship and the Court usually gives credit or makes an allowance
reflecting that contribution. It does not really matter in whose name a particular
asset stands or whether the asset is held by a company or trust. If the asset is
in the effective control of one party or the other it will be taken into account
by the Court.
Property comprises all assets such as houses, land, shares, money in the bank, furniture,
motor vehicles, insurance policies and the like. A superannuation entitlement is
not technically property but can be treated like property and can be split between
the parties. Both parties are obliged to be totally frank in making disclosure of
their assets.
In deciding what Order to make the Court takes into account numerous factors which
include:
- The direct or indirect financial contribution made by either party towards the acquisition, conservation or improvement of an asset. An example would be coming into the marriage with an interest in real estate..
- The contribution other than financial contribution made directly by a party to the acquisition conservation or improvement of an asset. For example, a party who paints the house makes a non-financial contribution.
- The contribution made by a party to the welfare of the family. This includes the role played by one or other partners as the homemaker and parent.
- The effect of any proposed order on the earning capacity of either party.
- A whole range of matters which are directed more to the future needs of each party. Included here are issues such as the state of health of each party, the question of whether one or other party has an obligation to support a child of the marriage and the ability of each party to obtain to continue work.
- The Court will also consider the fairness and equity of the proposed division of assets
An application for property settlement can be made immediately following separation
and it is not necessary to wait until divorce. However, once a divorce has been
obtained the application for property must be made within twelve months of the date
of the decree absolute (a month after the divorce hearing). If the application is
not lodged within that time a person must prove to a Court that there are special
circumstances which allow the application to be made late.
Reaching agreement as to division of property
Generally speaking, when lawyers are consulted about property settlement their initial
aim is to have the parties reach an agreement on the settlement without the need
to issue proceedings through the Court.
If that can be done there is a considerable saving in both time and cost not to
mention a significantly lower level of stress for all concerned. If agreement is
reached it can be evidenced by Consent Orders or a Binding Financial Agreement [include
link to BFA page].
Consent Orders are obtained by a very straight forward procedure which does not
involve either party or their solicitors actually attending Court. It is important
that the agreement is evidenced in writing, particularly where the parties enter
into a transfer of property as part of the property settlement (such as where one
transfers his or her interest in the home to the other) as stamp duty liability
is waived.
Court proceedings
In the event that the parties are unable to reach an agreement one or other of them
will issue an application to the Court and at that time also file a statement setting
out their financial circumstances.
Once the application has been issued by the Court, copies of the documents are served
on the other party who should then file a response together with a statement of
their financial circumstances.
The parties are required to attend a Conciliation Conference, which is an occasion
when the Registrar and the legal representatives assist the parties in making a
concerted effort to reach a settlement. If a settlement is reached at that time
often the details can be written out in the form of Court Orders and the Registrar
conducting the conference will make the Orders then and there, finalising the matter.
Otherwise the Orders can be prepared and signed over the ensuing days and forwarded
to the Court.
If the conference is unsuccessful either at that time or at a later date the Registrar
will give directions for the filing of material and other things required to be
done to prepare the matter for hearing and will list the matter for hearing. The
hearing is conducted before a Judge and each party and his or her witnesses give
evidence.
A lot of property matters are settled at or as a direct result of the conciliation
conference. Nonetheless, if the parties can reach an agreement at any time the matter
can generally be finalised immediately.
Types of work we do:
1. Rural Settlements
Our Managing Director, Tony Philips has practiced for almost 25 years, until recently
from our Toowoomba office. He has been instrumental in effecting a number of high
profile rural property settlements throughout Queensland and New South Wales. Since
relocating to Brisbane in 2004, Tony continues to deal with matrimonial settlements
involving rural property. We have extensive expertise in dealing in disputes in
the areas of:
- Beef cattle including feed lotting;
- Pork production;
- Sheep in both meat production and wool;
- Grain and fodder crops both irrigated and dry-land farming;
- Small crops including organic farming;
- Cotton - both irrigated and dry-land.
as well as issues concerning water allocation entitlements.
2. Business Disputes
Our firm has also dealt with disputes involving a varied range of businesses. Examples
of some of the types of businesses we have dealt with include:
- Accounting practices;
- Butchering;
- Car and truck dealerships;
- Cold storage business;
- Commercial fishing;
- Electrical contracting businesses;
- Electrical retailers;
- Engineering & mining businesses;
- Financial planning practices;
- Hardware businesses;
- Heavy machinery dealerships;
- Hire businesses;
- Insulation sales and installation;
- Legal practices;
- Manufacturing business;
- Meat processing;
- Medical practices;
- Panel beating;
- Retail businesses;
- Seafood wholesaling;
- Transport.
3. Complex Structures and Hidden Assets
We have had extensive experience in dealing with multiple entity corporate structures
and with the tracing and valuation of hidden assets. In conjunction with forensic
accountants, we undertake a process of unravelling the structures to quantify and
value the extent of the interests in entities.