separation

Will you have to sell your property after separation?

If you have separated and do not have the capacity to be able to borrow money to re-finance on your home to be able to pay your spouse/partner his or her entitlements under the Family Law Act 1975, then you may have to sell the home.

We can help you assess the other parties’ entitlements and organise an independent valuation (at the shared cost of the parties) for the purposes of a property settlement.

Before proceeding with sale of property after a separation, talk to us so that we may advise you of what steps to take.

 

This article provides information that is general in nature and is not a substitute for legal advice.

What is Spousal Maintenance?

Spousal maintenance is a payment made by one spouse/de facto partner to another for the maintenance of that person.

Spousal maintenance is not an automatic right.

Section 72 of the Family Law Act 1975 states that:

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

1. By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

2. By reason of age or physical or mental incapacity for appropriate gainful employment;

OR

3. For any other adequate reason.

A party may apply to the Court for an Order for spousal maintenance 12 months from the date of divorce or 24 months from the date of separation in the case of a de facto relationship.

It is common for parties to remain separated but not apply for a divorce. If that is the case, then there is a danger that one spouse may make a claim for spousal maintenance against the other even though the parties may have separated for a long time.

Spousal maintenance payments are generally separate to the property division between parties although they may sometimes form part of the property division/settlement.

 

For more information about spousal maintenance, speak with one of our lawyers today.

 

This article provides information that is general in nature and is not a substitute for legal advice.

De facto relationship or Friends with Benefits?

Since 1 March 2009, parties who were in a de facto relationship and are now separated may make an application to the Family Court or Federal Circuit Court seeking Orders for the alteration of property interests i.e. division of property.

Pursuant to section 4AA(1) of the Family Law Act 1975, a person is in a de facto relationship with another person (regardless of gender) if:

  1. They are not legally married to each other; and
  2. They are not related by family; and
  3. Having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances that the Court may take into account (as referred to above) may include any or all of the following:

  1. The duration of the relationship – The relationship or total duration of the relationship was for at least two years (unless an exception applies). An exception to the two-year threshold is if there is a child of the relationship;
  2. The nature and extent of the common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
  5. The ownership, use and acquisition of the parties’ property;
  6. The degree of mutual commitment to a shared life;
  7. Whether the relationship was registered;
  8. Care and support of children (if any);
  9. The reputation and public aspects of the relationship i.e. if the parties were acknowledged by friends and/or family as being a couple.

A de facto relationship may exist even if one person is, or if both people are, legally married to another person or are in another de facto relationship.

Time limit to apply to the Court for the division of property

The application must be made to the relevant Court within two years of the date of separation. This also includes the time that the parties are separated under-one-roof (if applicable).

If you would like to make an application outside of this time, you would need to first seek the leave of the Court i.e. ask for the Court’s permission to apply. The Court may or may not grant you leave depending your circumstances.

If you have not been granted leave by the Court to make the application, you and the other party may still enter into a Binding Financial Agreement for the division of property.

 

This article provides information that is general in nature and is not a substitute for legal advice.

What is a Binding Financial Agreement (BFA)?

A Binding Financial Agreement (BFA) is an agreement made between parties in a relationship – including same sex – which provides for the division of matrimonial assets and liabilities in the event of a separation. Types of BFAs include parties who are:

  1. In contemplation of a marriage (s90B);
  2. In contemplation of a de facto relationship (s90UB);
  3. During a marriage (s90C);
  4. During a de facto relationship (s90UC);
  5. After divorce (s90D); and
  6. After a breakdown of a de facto relationship (s90UD).

Besides addressing the division of matrimonial assets and liabilities, a BFA can also address issues of spousal maintenance (financial support from one spouse/de facto partner to another) and superannuation splitting.

BFAs however are not able to address issues of living and spend time arrangements regarding children, nor can they address child support issues. Parties would have to enter into a Parenting Plan, Consent Order and/or a Child Support Agreement for matters involving children and their maintenance. These are also agreements that Hassall’s Litigation Services can assist you with.

A BFA remains binding even after the death of one or both parties unless it has been set aside by a Court or terminated by the parties.

BFAs are made between the parties without the involvement of the Courts. This means that the parties, with the advice of their respective solicitors, are able to agree on a settlement without the approval of the Courts.

A BFA is binding if and only if the following legislative requirements are complied with:

  1. The agreement is signed by all parties; AND
  2. Before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages (at the time that the advice was provided) to that party of making the agreement; AND
  3. Either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice was provided to that party (whether or not the statement is annexed to the agreement); AND
  4. A copy of the statement that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; AND
  5. The agreement has not been terminated and has not been set aside by a Court.

A BFA can be terminated by the parties by:

  1. Executing a new BFA which includes a provision terminating the old BFA; OR
  2. Signing a Termination Agreement pursuant to the relevant sections of the Family Law Act 1975.

Would you like to know if a BFA is suitable for you? Contact our office today and speak with Hui Yin Ong to obtain more information and family law advice.

 

This article provides information that is general in nature and is not a substitute for legal advice.