Navigating family disputes can be overwhelming, with emotions and legal complexities making the journey challenging. However, family law is not only about legal battles; it’s also about preserving relationships while addressing concerns and goals, and this is where collaborative practice can help.
Collaborative practice is a process of dealing with these complex issues in a way that focuses on co-operating towards a desired outcome. It really shines when it comes to family law, as it values empathy, understanding, and mutual respect over adversarial interactions.
Collaborative practice, also known as collaborative law, emphasises the importance of co-operative negotiations in family law matters, over traditional methods, that can be more adversarial.
With collaborative practice, separating couples and their lawyers engage in family-focused discussions, aiming for mutually acceptable settlements through transparent and confidential negotiations. They generally enter a binding agreement to avoid litigation, ensuring a commitment to constructive dialogue.
This approach is holistic in nature, and not only involves lawyers but also jointly retained neutral experts where necessary, promoting a comprehensive resolution that considers the well-being of the entire family, rather than focusing solely on individual rights or adversarial tactics.
It’s not just lawyers who sit at the table: therapists provide emotional support, financial planners give economic insights, forensic accountant experts can assist with complex valuation issues and child specialists offer perspectives centred on the well-being of the children, as some examples. This ensures that every facet of a family dispute, whether emotional, financial, or legal, is addressed with the depth and care it deserves.
One of the leading bodies promoting collaborative practice in Australia is the Queensland Association of Collaborative Practitioners, and Shannon Daykin, the Director at Daykin Family Law, is a proud member. So believe us when we say we believe in this approach!
With that out of the way, let’s look at the core values of collaborative law a bit closer.
When looking at collaborative law as defined by the Australian Institute of Family Studies, there are a few core values that can be identified.
Both parties agree to openly share all relevant information, ensuring there’s no room for hidden agendas or surprises. This creates an atmosphere of trust, essential for constructive dialogue.
The focus remains squarely on finding solutions that work for everyone involved. Instead of a zero-sum game where one party’s gain is another’s loss, collaborative practice seeks outcomes where all parties can feel heard and validated.
Even in disagreements, collaborative practice prioritises respect. Recognising the intrinsic value of each individual’s perspective and feelings fosters a more constructive environment for resolution.
Depending on the complexity and nature of the dispute, other professionals such as financial advisors, child specialists, or counsellors might be engaged to provide a balanced solution.
Both parties, along with their respective lawyers, enter into a binding agreement that they’ll abstain from resorting to litigation while engaged in the collaborative process. This commitment ensures that every effort is channelled towards negotiation and consensus.
Through these central principles of understanding and cooperation, collaborative practice offers an alternative to the often aggressive dynamics of traditional legal proceedings.
This co-operative practice is especially valuable in family law matters such as divorce and separation. A divorce, by nature, can be contentious and heavy with emotions. However, applying the principles of collaborative law to divorce proceedings promotes an environment where both parties strive for a collective solution.
Instead of courtrooms, decisions surrounding the divorce are made in collaborative meetings, ensuring both parties have a voice. There’s less confrontation, often leading to better, more sustainable outcomes. This approach ensures a fair resolution in terms of tangible assets and financial matters but also a careful navigation of emotional and psychological aspects associated with divorce.
Using collaborative practice to resolve disputes can significantly influence not just the immediate outcome, but also the long-term well-being of all involved. When dealing with disputes through Collaborative Practice, it offers a range of benefits that make it a compelling choice for many, such as:
Unlike the unpredictable nature of court proceedings, Collaborative practice places the power squarely in the hands of the individuals involved. Clients are active participants, shaping the course of discussions and decisions. This empowerment instils a sense of ownership and commitment to the resolutions reached.
In family disputes, especially those involving children, the overarching goal is often to ensure their well-being and shield them from undue stress. Collaborative practice, with its emphasis on dialogue and understanding, ensures that children are spared the brunt of adversarial confrontations. Their needs and emotions are prioritised, ensuring a more nurturing environment amidst the upheaval.
The prolonged nature of traditional litigation can be both time-consuming and financially draining. In contrast, collaborative practice, by sidestepping court battles, often results in quicker and more cost-effective resolutions. The collaborative approach emphasises direct communication, which can lead to swifter consensus and lower costs in the long run.
Family disputes, if handled combatively, can leave a lasting effect on relationships. Collaborative practice strives to prevent estrangements. By fostering mutual respect and understanding, it encourages parties to move past their differences, preserving familial ties. This becomes especially important in situations where ongoing interactions, such as co-parenting, are inevitable.
By treating each perspective with dignity and value, collaborative practice allows for more harmonious interactions. Over time, this approach can help replace animosity with understanding, leading to more sustainable resolutions.
If you are going through a family dispute and are seeking a resolution-centric approach, Daykin Family Law is here to guide and support you. Our expertise in collaborative law ensures you’re not just represented but also understood, respected, and empowered. Contact us today for guidance on collaborative methods for any family law-related concerns, and whether this may be right for you and your family.
On October 11 2023, the Queensland Government, under the leadership of the Palaszczuk administration, marked a significant milestone in the battle against domestic, family, and sexual violence by introducing landmark legislation that will make coercive control a criminal act in Queensland.
The bill, known as the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023, comes in the wake of recommendations from Queensland’s Women’s Safety and Justice Taskforce.
In a public statement, the Queensland Government stated that the offence of coercive control will carry a maximum sentence of 14 years in in prison, and criminalises the actions of an adult under the following conditions:
At this stage the new coercive control laws won’t come into effect until 2025, but this Bill still represents a significant step forward in addressing domestic violence in the state.
Coercive control is commonly understood as a form of domestic abuse where one individual consistently exercises power and dominance over another through behaviours that intimidate, threaten, or undermine the victim.
Instead of, or in addition to, physical violence, it involves a pattern of manipulative behaviours that may include emotional, psychological, financial, and digital control, aimed at making the victim reliant on the perpetrator and restricting their independence.
The intent often is to trap the victim in the relationship and deprive them of their agency and autonomy. This recent legislation has criminalised this behaviour, recognising its significant detrimental impact on the victim’s physical, emotional, financial, psychological, or mental wellbeing.
Find out more about the signs of coercive control and what to do when you spot them.
This law arises from the first report released by the Queensland’s Women’s Safety and Justice Taskforce which is an independent, consultative taskforce created by the Queensland Government.
The report, known as Hear Her Voice – Report one – Addressing coercive control and domestic and family violence in Queensland, was first released in 2021, and features 89 recommendations to the Queensland Government on how to reform the domestic violence service and justice systems. These recommendations were devised after listening to more than 500 submissions from predominantly women and girls in regard to their experiences with coercive control.
The Hear Her Voice report brought to light the pressing issues that many victims face when seeking help. An overwhelming number of victims recounted unsatisfactory responses when reaching out to the police for assistance with domestic violence. This raised concerns about inconsistent and inadequate training for officers handling these sensitive cases. Many victims detailed being turned away, not being believed, or having their experiences minimised by the very people who were supposed to protect them – the police.
The report found that the disconnect and inconsistency in responses had led to a decline in trust towards the Queensland Police Service (QPS) among many victims of domestic and family violence. The Taskforce acknowledged that while significant investments had been made in the QPS and there were officers and teams doing commendable work, cultural issues persisted, preventing the effective handling of domestic violence cases.
To address these deeply ingrained issues, the Taskforce recommended the establishment of an independent commission of inquiry into the police. This commission’s report led to a $100 million investment into a variety of reforms and initiatives to provide enhanced support and protections to those caught up in domestic violence, among which was the introduction of the new laws criminalising coercive control.
On top of the new legislation criminalising coercive control, the Queensland Government has stated there will be:
On top of this the Queensland’s Women’s Safety and Justice Taskforce released a second report in 2022 titled Hear her voice – Report two – Women and girls’ experiences across the criminal justice system, that is split into two volumes: volume one and volume two.
Hear her voice – Report two – Women and girls’ experiences across the criminal justice system delves deep into the challenges women and girls encounter within the criminal justice system, both as victims of sexual violence and in roles as accused individuals or offenders.
Report Two outlines a strategic plan for Queensland, aiming to improve our criminal justice system, ensuring those who interact with it – whether as victims, accused, or both – receive trauma-informed care. The Queensland Government stated that it is committed to considering all 188 recommendations from the Taskforce.
With these extensive changes and commitments, Queensland residents can ideally anticipate a criminal justice system more attuned to the nuanced challenges faced by victims, ensuring a more compassionate, responsive, and robust framework against domestic and family violence.
The current legislative changes are just the beginning of a broader shift towards redefining how Queensland addresses domestic and family violence.
If you or someone you know is being subjected to a situation of coercive control, it’s crucial to remember that you’re not alone and there are resources available to support you. Here are some steps you can take to deal with coercive control:
Please remember, every person’s situation is different. What helps one person might not be right for another. You’re not in this on your own; there are those out there ready to lend a hand and support you through it.
In this article, we look at how long divorce takes in Australia.
Divorce can be a complicated process to navigate as it requires legal procedures and paperwork. While the standard divorce process in Australia usually takes a few months to be finalised after submitting an application, the total duration of divorce proceedings and everything that they entail can vary significantly as there are many factors that come into play.
The legal framework in Australia provides certain guidelines and timelines for divorce, but individual cases can vary widely in their duration.
It’s also important to note the distinction between the divorce itself, which is simply the legal severance of the marriage, and everything else that is separate such as property settlement, child support, spousal maintenance etc. While the actual time between filing for divorce and having a divorce order issued by the court usually only takes several months, the rest of the proceedings relating to other matters may take much longer.
Divorce is usually granted in two steps:
Step 1: Court order
If all the requirements are met and the court is convinced that adequate provisions have been set for any children involved in the relationship, a court order will be issued. However, it’s crucial to recognise that a period of time must usually pass before the order takes effect.
Step 2: Finalising the Divorce
Following the issuing of the initial court order, there is a standard waiting period. The divorce order generally becomes absolute 1 month and 1 day after the order is made, marking this date as the official divorce date. However, there are circumstances where the court might have compelling reasons to delay the granting of the divorce beyond this timeframe.
There are two other common factors that may delay the actual divorce process itself:
Now let’s look at the full timeline and process of separation, divorce proceedings, and all other relevant factors to get a more comprehensive picture of the duration between the initial separation, the finalised divorce, and property settlement.
While each situation may have unique circumstances, there are general procedures in place that influence how long divorce takes in Australia to ensure fairness and due diligence.
While the procedure might seem straightforward and sequential, each step can carry emotional, logistical, and legal significance. And though the timelines may vary depending on individual circumstances, understanding the general outline ensures you’re better prepared for the journey.
Beyond the emotional turbulence of a divorce, the practical implications concerning assets, property, and finances are often significant. Property settlement is an essential aspect of many divorces, ensuring that both parties can move forward with clarity and security regarding their financial futures.
A divorce property settlement refers to the process through which assets, debts, and finances are divided between both parties after separation. This isn’t just about tangible assets like a home or bank accounts; it can also encompass superannuation, investments, and other financial interests.
Much like the divorce process itself, the duration of property settlement can be influenced by several factors:
It’s worth noting that while the divorce might be finalised, property settlement can take place either before or after the divorce order has been made. However, it’s crucial to be aware that once a divorce order takes effect, a 12 month time limit commences for parties to file in the Court for property settlement and/or spousal maintenance, or leave may need to be sought to file out of time. For separated de facto couples, this time limit is 2 years from the date of separation. Such leave applications can be expensive and success is not guaranteed. Find out more about how assets are divided in a divorce.
For more information on how long divorce takes in Australia, reach out to Daykin Family Law today.
Whether you are separating from your de facto partner or spouse, there are often many decisions to make, from the division of finances and property settlement to arrangements for child support and divorce. Our divorce lawyers are here to help you every step of the way. Shannon Daykin is an Accredited Family Law Specialist with extensive experience in all aspects of family law. Contact Daykin Family Law today to arrange a reduced fixed fee initial consultation.
In this article, we look at how assets are divided in a divorce in Australia.
Navigating the challenging path of divorce is difficult enough without the added worry of how assets will be divided, which can be a mystery for many. This crucial process, often marred by emotional turmoil and tension, is of immense importance as it can significantly impact the financial stability of each party involved.
In Australia, the law provides specific guidelines in essence on asset division in the event of divorce or de facto separation. It’s a fairly complex process, more complex than many think, steeped in legislation and legal intricacies, which mandates careful consideration of several factors.
This article aims to shed some light on these factors, helping you understand how assets are divided in a divorce in Australia, and provide you with the essential knowledge to navigate this path with clarity and confidence.
Assets that you’ll need to consider when dividing assets in a divorce include (but are not limited to):
Alongside assets, you also need to consider liabilities during divorce, for example:
Superannuation and other financial resources also often need to be considered as part of the net assets available for distribution.
Now, let’s look at how to split these assets in a divorce.
There are a few common methods used to split assets during a divorce in Australia, including.
It’s important to remember that in the case of divorce in Australia, there is no fixed formula for asset division. It’s a misconception that assets are always divided equally; the actual division considers a variety of factors and is not a simple 50-50 split. The Court takes into account each party’s financial and non-financial contributions, the future needs of each party, and the justice and equity of the proposed division, for example. Understanding these issues can help individuals navigate the financial implications of divorce more effectively.
In cases where negotiations fail and both parties cannot agree on property division, a Court-guided process is often necessary. It’s important to understand that divorce, which is the legal dissolution of a marriage, is a separate legal process from asset division and property settlement.
Property division can be finalised while the couple is still living together after separation or before the divorce is finalised. When the Court is involved, a five-step process is used to determine the division of assets. The substantive four steps are, briefly put:
Now, let’s look at a specific example.
Jack and Lily are a married couple who have decided to separate. They have been married for 12 years, during which time they both worked full-time and had roughly the same annual income. They have two children, aged 6 and 9, who will be primarily living with Lily post-separation.
Their assets include:
A family home valued at $1.3 million
Savings amounting to $80,000
Two cars worth a combined value of $50,000
Superannuation: Jack’s superannuation is $200,000 and Lily’s is $180,000
Their liabilities include:
Remaining mortgage on the family home of $500,000
Car loan of $20,000
Credit card debt of $10,000
By totalling all the assets and subtracting the liabilities, we determine the net asset pool:
Total assets: $1.3m (home) + $80,000 (savings) + $50,000 (cars) + $200,000 (Jack’s super) + $180,000 (Lily’s super) = $1,810,000
Total liabilities: $500,000 (mortgage) + $20,000 (car loan) + $10,000 (credit card debt) = $530,000
So, the total net asset pool is $1,280,000 ($1,810,000 – $530,000).
Jack and Lily made equal financial contributions, but Lily took on the role as primary carer for the children in addition. Lily may, in that scenario, receive a higher percentage in her favour on the contributions step.
Lily will continue to be the children’s primary carer, so Lily may also receive an uplift on the future needs factors.
For example, let’s assume the court decides on a 60%/40% division in Lily’s favour. Lily would then receive $768,000 (60% of $1,280,000), and Jack would receive $512,000 (40% of $1,280,000).
Please note that this is a simplified example and actual asset division can be complex, depending on a multitude of factors. It’s crucial to consult with professional legal counsel, such as the team at Daykin Family Law, for guidance tailored to your specific circumstances.
If you’re facing a divorce in Brisbane or Wider Queensland and are unsure about the division of assets, don’t hesitate to contact our team at Daykin Family Law. We’re dedicated to providing you with pragmatic advice to solve your issues efficiently and help you move towards the next chapter of your life.
Divorce or separation can be a challenging time for anyone, especially when it comes to dividing property and finances. As one of the most significant issues to consider during the legal process, property settlement after divorce can cause a great deal of stress and uncertainty. However, understanding the ins and outs of divorce property settlements can help you achieve the best possible outcome for yourself and your family.
In this article, we cover some handy things to know about property settlement after divorce including the legal framework, the factors that influence property division, and we also look at an in-depth example. Our aim is to provide you with the information and resources you need to navigate this complex area of family law with confidence.
At Daykin Family Law, we believe that a comprehensive understanding of divorce property settlements is essential in achieving a fair and just outcome for all parties involved. If you’re in the Brisbane area, contact us today to find out how we can help.
Property settlement in the context of a relationship breakdown can be a complex and emotionally charged process. It can involve the division of assets, financial resources, superannuation and debts between two parties following the end of their relationship.
If you separated from your de facto partner after 1 March 2009, you may have the right to apply for a property settlement and/or maintenance under the Family Law Act.
Negotiating a property settlement can be stressful and complicated. Hence, you might consider engaging a lawyer to assist in negotiations with your former partner. Even if you choose not to use a lawyer for the negotiation process, it’s crucial to seek legal advice before signing any agreement. Importantly, this advice should come from a lawyer who hasn’t previously advised your ex-partner.
Ideally, both parties should aim to reach an agreement about the division of property. This agreement can then be formalised into a court order, known as consent orders, which must be adhered to. Another option for a legally enforceable and binding agreement is to enter into a Binding Financial Agreement.
If an agreement cannot be reached, you have the option to apply to the court for property orders, which will dictate how the property should be divided.
Before applying to the court, certain pre-action procedures must be undertaken. Family dispute resolution services are available to help you reach an agreement. Family Relationship Centres might also offer assistance, particularly in cases where children are involved, though they are unable to provide legal advice. We often refer clients to private mediators, and work with a number of highly respected mediators in our field.
For any financial difficulties arising during this process, a financial planner or a financial counsellor can offer guidance. Don’t hesitate to seek professional advice to ensure your rights and interests are well protected.
Once lodged with the court, property settlement agreement via Consent Orders can be altered in only defined ways, unless both parties agree to the changes. Please note that even if you both consent, the court will not enact an order unless deemed ‘just and equitable’, essentially meaning appropriate for both parties.
For advice on varying or amending Consent Orders when there is no agreement to do so, contact us to discuss whether you may have grounds and any options.
The Family Law Act essentially prescribes a four-step procedure to calculate property settlement in divorce, after it is established that it would be just and equitable to have a property settlement. Let’s break down these steps.
Step 1: Identification and valuation
The first step involves identifying and valuing all the property from the relationship or marriage, which also includes debts. It’s important to remember that this includes not just property and assets acquired during the relationship, but also those obtained before or after the marriage (or relationship).
Step 2: Consideration of contributions
The second step is to consider what each person has contributed to the relationship. These contributions could take various forms:
All these contributions, among others, can be taken into account to ascertain both parties’ entitlements.
Step 3: Future needs factors
The third step involves considering other factors outlined in the law, such as:
It’s important to note that the law does not consider who left the relationship when deciding what a fair division of property is. It aims to ensure the division is just and equitable, given the totality of the circumstances. A party’s conduct rarely has relevance in property settlement matters, but this can occur in certain circumstances.
Step 4: Court’s decision
Finally, the court will decide the exact division of the property. The court’s main concern is essentially ensuring that the division of property is just and equitable in all circumstances. This means that the court will look at all the information presented, apply the law, and make a decision that it considers is appropriate. In a nutshell.
Remember, while these steps provide a general framework, the exact process can vary depending on the specific details of each case. It’s highly recommended to seek expert legal advice to ensure your rights and interests are properly represented and protected in a property settlement.
Consider a divorce scenario involving Alex and Jamie where they have attended a mediation and reached agreement on how to divide their property.
We’ll simplify the 4-step property settlement process to help illustrate how they came to their agreement and what the outcome was.
Step 1: Asset identification
Alex and Jamie’s financial picture is as follows:
Given these figures, the net value of the couple’s combined assets is calculated as follows:
Assets – Liabilities + Superannuation = Net Asset Pool
$1,080,000 – $150,000 + $150,000 = $1,080,000
Alex and Jamie have total net assets amounting to $1,080,000. We call this “the property pool” or “the matrimonial property pool” for example.
Step 2: Evaluate contributions
Next, the contributions each party has made to the relationship, both financial and non-financial, need to be evaluated.
Neither Alex nor Jamie owned any property prior to marriage. While their superannuation holdings are different, their earnings have been relatively similar. Therefore, their financial contributions may be considered around equal. However, Jamie, who has taken on the role of primary caregiver for their two children, has contributed more in the sphere of homemaker and parenting. Recognising this, they agree that Jamie should receive an additional 2.5% in the final division on the contributions step.
Step 3: Assess future needs
With two children who still need care, an adjustment in favour of the primary carer is warranted.
While Alex will be involved in the children’s lives, the parties agree that Jamie, as the primary carer, will receive an additional adjustment of 2.5%.
Step 4: Justice and equity
The parties agree to consent orders that have the effect of both of them retaining super, selling the home and both Jamie and Alex receiving a sum of money (in addition to the other items they each own). See more on this below.
The proposed settlement is arguably just and equitable, given they will each retain super of fairly similar amounts and cash to move forward.
After taking into account the entire process, Alex is allocated 45% of the net assets, and Jamie is allocated 55%. This was achieved by agreement.
Jamie and Alex have agreed that there will be no superannuation splitting. They will each retain their respective superannuation entitlements as part of property settlement.
They expect to receive approximately $820,000 once the house is sold and all sale-related costs (including marketing costs) are paid. When you take out the sale costs, the total net pool comes down to $1,050,000 in total.
Therefore, the effect of the settlement is that Jamie will receive $577,500 (55% of $1,050,000), and Alex will receive AUD $472,500 (45% of $1,050,000).
It is agreed that Jamie will keep the cash savings of $50,000, other assets of $10,000 and her super of $70,000. To achieve a property settlement split of 60% overall on these figures, Jamie needs to receive the sum of $447,500 from the house sale. Her overall property settlement entitlement is then as follows:
It is then agreed that Alex will keep his car worth $20,000 and his super of $80,000. Alex will receive the rest of the net sale proceeds, totalling $372,500. His overall property settlement entitlement is then as follows:
The above is an example of how the property settlement process can be stepped out, showing you a global approach to dividing property after the breakdown of a marriage. The above does not constitute legal advice. Every situation and circumstances are different, and entitlements can vary. Expert advice is needed to ascertain what is best for you, and how best to achieve your goals.
Here at Daykin Family Law, we aim to guide you through property settlement and divorce, providing expert legal advice tailored to your specific situation. Remember, navigating this process effectively is key to securing your financial future post-divorce. Contact us today for professional assistance in achieving the most beneficial outcome for you.
Discover in what scenarios an ex-spouse or partner may be entitled to your inheritance in Australia after a divorce or separation.
It is quite common that one of the party’s to a marriage or de facto relationship receives an inheritance during the course of the relationship. But conflicts can often arise when the relationship comes to an end and the process of property settlement begins. This conflict is exacerbated when the recipient of the inheritance becomes concerned with the prospect of the ex-partner claiming or retaining the inheritance.
An inheritance can be classified as property under the Family Law Act 1975 and for the purpose of asset division, it is dealt with under property settlement.
Property settlement with an inheritance in the mix can be confusing to separating or divorcing couples. The recipient party might believe that the inheritance is intended solely for their benefit and should not be treated as part of the divisible asset pool to be shared with the ex-partner.
The other party on the other hand, might be of the opinion that the inheritance was given for the benefit of both partners or for family use, or due to other reasons, and therefore should form a part of the divisible asset pool at the end of the relationship.
An ex-partner might be able to claim part of an inheritance at the breakdown of the relationship, whether it arises from a marriage or de facto relationship.
The easiest and most practical way to protect an inheritance after separation is by reaching an agreement on how assets including the inheritance would be divided.
The agreement reached can be formalised by applying to the court for a consent order or by entering into a binding financial agreement with lawyers.
Where a separated couple has made attempts to negotiate an agreement and could not finalize on one, they can approach the court to decide if the inheritance would form part of the property pool available for distribution, or would be left solely for the benefit of the beneficiary.
If a recipient party of an inheritance took steps to protect what they received, such as by keeping it separate from the pool of family assets, the court may be in some cases treat the inheritance as separate from the property pool available for distribution.
There is no formula for how the court treats the division of assets including inheritance during property settlement. The court will consider what is just and equitable and evaluate the facts and merits of each individual situation. However, the court may consider the following factors to make the decision:
The court may consider whether the inheritance was received before the relationship began, during the de facto relationship/marriage, or after separation.
Where the inheritance was received before the relationship began, early in the relationship or before commencement of cohabitation, the court may more likely consider it as an initial contribution of the recipient party to the relationship and the inheritance may not be separated from the property pool available for distribution.
The treatment of an inheritance received during the relationship will depend on how the inheritance was used and sometimes the intentions of the benefactor can be relevant.
Where the inheritance is monetary, for example, if the money is spent on paying family expenses or used for the benefit of both parties generally, it may be treated as a financial contribution by the recipient party and more likely to be added to the ”property pool”.
This means that the longer the period between when the inheritance was received and the time of separation, the more likely the courts may be to treat it as part of the pool of assets to be divided.
Usually when an inheritance is received after separation, there is a diminished opportunity for intermingling it with the divisible asset pool. The court can either adopt a “two pools” approach, effectively separating the inheritance from the rest of the property pool, or treat the inheritance as part of the property pool. In the latter case, when an inheritance is received after separation, a higher percentage contribution may be awarded to the recipient party.
The court may consider if the ex-partner made contributions to the inheritance. Contributions from a former partner can effectively leave the inheritance unsheltered and open to be treated as part of the divisible asset pool. For example, if the inheritance is an old cottage that needs a new roof, if the ex-partner fixes the roof, the cottage may no longer be considered an inheritance solely for the benefit of the recipient party and may be added to the divisible asset pool, and certain findings may be made about contributions of both parties to the inheritance instead of just one party.
The court may also consider the intention of the benefactor on how the inheritance should be used.
If the intention of the benefactor shows clearly that the inheritance is meant for the whole family, the inheritance may be added to the property pool to be divided as part of property settlement.
The size or value of an inheritance can affect whether the inheritance is included in the asset pool or not.
The court may consider the size of the inheritance and compare it to the value of the joint asset pool. Where the joint asset pool is substantially smaller than the inheritance, the courts may include the inheritance to ensure a just and equitable property settlement for both parties.
The court may also consider the contribution of the ex-partner and weigh it against the size of the divisible asset pool. If the divisible asset pool shrinks significantly when the inheritance is excluded and the court believes the exclusion will not allow for a just and equitable division, the inheritance may in that case be treated as a part of the property pool for division.
There are situations where the court will consider the relationship between the benefactor and the ex-partner.
The former partner might have had a good relationship with the benefactor. For example, the benefactor might have lived with the partners, and the ex-partner might have assisted in taking care of the benefactor when ill for example.
While taking note of the intentions of the benefactor in the will, the court may also put the ex-partner’s relationship with the benefactor into consideration and add the inheritance to the pool of assets to be divided.
To sum it all up, in a separation or divorce, an ex-spouse or ex-partner might be able to claim that the inheritance of the other party forms part of the property pool available for distribution as part of property settlement. This depends on a number of factors as mentioned above.
To avoid a costly legal battle after separation, couples in an intact relationship can consider entering into a binding agreement detailing how their property (including an inheritance) will be treated in the event that the relationship ends. Learn more about these agreements here.
Every case is different. We recommend that you contact us to discuss your specific situation and how best to approach inheritances and your property settlement.
Daykin Family Law can guide you through the process of property settlement. Contact us today for an overview of your options and how we can help you reach a positive solution.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us at (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
A main concern for people when they separate is what will happen to the property they have accrued during the relationship. It’s no wonder then that questions around the division of property are some of the most common we are asked at Daykin Family Law.
We frequently advise on concerns related to the family home and ownership of property in the event of separation, so we’ve pulled together some of key facts you need to know about property before, during and after divorce or separation.
There are several options available when it comes to the division of assets, but for most separating couples, what happens to the family home can negotiated and agreed as part of property settlement. There is no set way how this agreement can be reached, and often depends on reaching an outcome that suits both parties and the children, if any.
Simply put, a Property Settlement is the division of assets and liabilities between a separated couple, whether married or de facto. Property Settlement involves the division of the things you and your partner own or have an interest in. This can include real property, businesses, shares and chattels to name a few.
If you require more information on the process and time constraints in detail, we’ve covered 8 Things You Need to Know About Property Settlement here.
At a time when budgets are often stretched, this question is a common one. Firstly, if the mortgage is in both names (‘joint names’) then both parties are legally responsible for paying the mortgage. If payments are not made, by either or both parties, then the bank can take steps to legally repossess the property, despite any separation or divorce proceedings that are in place.
If, in the event that one party, whether living in the house or not, refuses to make mortgage repayments, there are a number of options to consider:
Whether you keep making mortgage payments depends on a number of circumstances. For example, continuing to make mortgage payments can enhance your property entitlements if those payments are considered to be post-separation contributions in certain scenarios.
In other circumstances, it can be advisable to cease making contributions where that person is no longer living at the property and has to rent new premises and lacks the capacity to make such payments. Ultimately, the decision made surrounding mortgage payments can impact on property settlement . It is strongly advised to seek advice from a family law specialist to decide the best course of action for your individual circumstances.
In situations where one spouse is unable to live under the same roof as the other, a ‘holding pattern’ can be agreed that allows one spouse to take rented accommodation and for resources to be made available for this purpose until the property settlement is finalised. If no agreement can be reached and neither spouse wants to leave, an application can be made to the Court for an order granting sole occupation. In order to do this, it may need to be demonstrated that it isn’t viable for both spouses to live together, and that the funds are available to fund a separate accommodation for the other party.
Yes, you may be able to. The Family Law Act 1975 contains certain mirror provisions that apply to both married and de facto couples. An application for property settlement arising from the breakdown of a de facto relationship can be made in circumstances where:
Yes, you can commence the process at any time. A settlement can be a lengthy process, so it can be advisable to begin the property settlement process as soon as it is feasible. Sometimes, the longer parties wait before dividing the property, the greater the chance that problems may arise, for example one of the parties could be reducing the property pool by wasting, selling or disposing of property.
It should also be noted that the Court will usually identify and value property that exists at the date of the final hearing, meaning property acquired by the parties after the date of separation can be taken into account.
However, it is important to only begin the process when you can think rationally. Where there is any hostility, it is advised to seek the assistance of a lawyer. Separating de facto parties must bring proceedings for Property Settlement and/or maintenance within two years of the date separation and married couples must do so within twelve months of a divorce order taking effect.
Putting aside the legal aspects, if you have children, this can bring an emotive aspect to considerations around property, especially in the short term. In what is normally a turbulent time, parents should consider whether it is viable, appropriate and financially possible for one parent to remain in the family home with the children in the interim period of separation or divorce. Some separating couples in this situation prefer the primary carer to stay in the family home to ensure continuity for the children.
While both parties may strive to ensure continued access to the family home for the children, sometimes this may not be feasible. Many primary caregivers are not the primary income earners and may be concerned about how they might be able to make financial ends meet while maintaining continuity for the children in the family home, or how they will solely take on a mortgage.
Alternatives such as spousal maintenance may be an option in this scenario, to ensure one party pays for particular outgoings for a period, even if they are not living in the family home. Where there are financial strains from not immediately dividing the property assets, we strongly advise getting legal advice to try and reach the most balanced outcome for both parties.
Separation, divorce and property settlement can be one of the most emotional and financially important decisions of your life so it’s crucial to work with a lawyer with the expertise and experience you need to be able to make informed decisions about your entitlements and which course of action is best for you personally and your children.
Daykin Family Law offers a discounted initial consultation wherein you can understand your entitlements and obligations. We can discuss your entitlements and suggest the best course of action to settle the matter quickly and efficiently.
If you believe you can come to an amicable agreement with your partner, it is still important to have that agreement formalised in a binding and enforceable way. Property Settlement can be a complex area of law; therefore, sound and pragmatic advice is needed to ensure that all issues are fully assessed from the outset and steps are put into place to protect you throughout your whole matter.
Each case is different and depends on the individual situation, so contact us today to start the discussion on how we can help you move your financial separation forward.
If you require further information on separation or divorce, check out some of our other articles:
Whether you are leaving a marriage or de facto relationship, you may require a Property Settlement or the division of assets upon the breakdown of your relationship. We’ve pulled together a list of our most commonly asked questions to help you navigate this complex area of law.
Generally speaking, Property Settlement is the division of assets and liabilities between a separated couple, whether married or de facto. Property Settlement involves the division of the property held by both parties.
The Family Law Act 1975 (Cth) sets out the law regarding Property Settlement and, importantly, deals with people on an individual basis. So, whilst you may have heard stories from friends and family who have been through Property Settlement, it is important to note that those circumstances may not necessarily apply to you and your ex-partner. Every relationship is different, so it’s crucial to obtain advice about your situation and circumstance from an expert.
Property is generally classed as all of the assets (things you own). This could be in joint or separate names, or could be held by someone else on a party’s behalf. Some examples include;
It can also include property you held in your own name prior to the relationship, or property you acquired following separation.
Negotiating a Property Settlement is really important – if you don’t finalise your financial relationship, either party is able to come back and make a claim for property settlement at a later date. In this case, the Court considers the property at the date of proceedings rather than the date of separation. This could mean that any debt accrued by the other party is brought into the property pool in some circumstances, despite the debt being accrued after separation. This can apply to superannuation and savings, assets acquired with another person right through to extreme cases like a lottery win. Aside from physical property, practical issues such as mortgage payments, personal loans and credit cards also need to be taken into consideration.
Whilst Property Settlement can be the most complicated part of the separation, it is also one of the most important steps to take, as it finalises your financial relationship. This means that neither party can make any further property settlement claims against the other if the agreement is made binding and enforceable or property settlement Orders are made by the Court.
Whether you have recently separated from a marriage or de facto relationship, you are able to apply for property settlement now. You don’t need to wait for a divorce, for example, before having a Property Settlement. This can occur shortly after separation.
Generally speaking, it may be best to consider property settlement as soon as you can feasibly do so. However (with a couple of exceptions) separating parties must bring proceedings for Property Settlement within two years of separation for a de facto couple or twelve months of a divorce order taking effect for a married couple. If a Property Settlement is not reached prior to these time limits, it is possible for the other party to bring an application ‘out of time’ in certain circumstances so you may still be at risk.
Whilst many people think this is the case, there is actually no rule or presumption that dictates the equal division of assets in Australia. Property Settlement is always at the discretion of the Court who will weigh up many factors in making their decision. Some of these factors can include;
The longer the relationship, the more likely it may be that the Courts may consider both the contributions of the parties are equal, but the reality is that each case is unique and different.
Whether you reach an agreement out of Court, or have to litigate to obtain your entitlement, the law we advise you on when it comes to property settlement is the same.
Broadly, this process involves:
Sometimes, one party may request the property settlement and the other party does not want to finalise the settlement. In this case, your family lawyer can contact the other party in writing to progress towards financial separation, or suggest mediation. If this is refused, a last resort is then to bring an application for property settlement despite their wishes. The Court will then decide on a just and equitable division of assets and liabilities, as well as superannuation.
Whether amicable or not, the best way to finalise the Property Settlement is to commence the process as soon as is practical. At Daykin Family Law, we normally start the process by advising you of your entitlements, then proceed to draft a letter to send to the other party with your agreement. Where it is possible, we will try to avoid the necessity of going to Court by coming to an amicable resolution.
In some cases, where there is little likelihood of achieving an amicable result through mediation, we will assist you in commencing Court proceedings.
The Property Settlement process is aimed at negotiating a settlement outside of Court, and as such, most cases do not go to trial.
If you are considering a Property Settlement, the first thing to do is to understand your rights and obligations. Daykin Family Law has extensive experience in navigating, resolving and finalising property settlement and financial issues upon the breakdown of a relationship, including acting for third parties whose interests are affected by marriage or de facto relationship breakdowns.
Daykin Family Law offers a discounted initial consultation wherein you can understand your entitlements and obligations. We will work out your entitlement and suggest the best course of action to settle the matter quickly and efficiently.
If you believe you can come to an amicable agreement with your partner, it is still important to have that agreement formalised in a binding and enforceable way. Property Settlement can be a complex area of law; therefore, sound and pragmatic advice is needed to ensure that all issues are fully assessed from the outset and steps are put into place to protect you and your interests throughout your whole matter.
Each case is different and depends on the individual situation, so if in doubt, contact us today.
If you require further information on separation or divorce, check out some of our other articles:
There is a misconception that a divorce will also resolve your property settlement with your ex-partner: It will not. Obtaining a divorce order will not give you finality in your financial relationship with each other.
For divorce in Australia, parties must complete a divorce application and file it with the court. The court will consider this material at a hearing, the date of which is set down when you file the application (usually 3 or so months after filing). If a divorce order is granted, this will provide you with a legal separation, however it will not automatically alter your property interests under family law.
To be eligible to apply for a divorce, you must have been separated from your spouse for at least 12 months. There can be circumstances where parties may have separated but they remain living together under the same roof for a period time or have had short periods of reconciliation and then separated again on a final basis. You may still be eligible to make a divorce application in these situations. You should speak to a lawyer to discuss your particular circumstances and confirm your eligibility and the court’s requirements.
Separate to a divorce, a property settlement will provide you with an alteration of property interests (for example, determining who will keep the house, or whether it needs to be sold; who will be responsible for the credit card liabilities; how superannuation will be split between you etc). The process for finalising a property settlement will depend on whether the parties have agreed or can come to an agreement regarding how their property interests should be divided.
If both parties agree
If a separated couple agrees to alter their property interests and the terms of that property settlement, they can have a legally binding and enforceable agreement by:
Using either option, or in some cases both options, your lawyer will need to take your detailed instructions in relation to the property that you own (including assets, liabilities, superannuation and financial resources), the contributions made by both parties throughout the relationship and any factors which may impact on the parties moving forward (such as age, health, income disparity, care of children etc). They will assess your entitlement and confirm whether your agreement is in line with what the courts would consider is just and equitable. They will then draft the required documents for you to affect the property settlement. There will be different processes from this point depending on which option you choose: binding financial agreement or consent orders.
If both parties cannot agree
Mediation is a process whereby the parties attend upon a mediator, with or without their solicitors present, to attempt to come to an agreement about the division of their property interests. The mediator should assist the parties to keep the conversation to relevant information and work with you to generate options for terms of settlement which are acceptable for both of you. If an agreement is reached at mediation, you can approach a lawyer to draft the relevant documents and finalise the property settlement.
Court proceedings are started as a last resort if the parties cannot agree on how to divide their property interests. Proceedings are not usually commenced without attempts to resolve the matter by way of negotiation or alternative dispute resolution as they can be costly and emotionally taxing on all parties involved.
It is important to finalise your financial relationship with your ex-partner. An informal agreement, even if it is in writing, may not be binding and one of the parties may be able to make an application to the court seeking an arrangement that is different to the agreement made between you (provided they apply within the relevant time limit). Therefore, having your agreement formalised through a binding financial agreement or consent orders is necessary to protect yourself moving forward. A lawyer can assist you with this and guide you through this process.
There is a 12-month time limitation for a married couple to apply to the court for a property settlement or for spousal maintenance after a divorce order takes effect. Whilst the court can grant leave to apply outside of this time limit, it can be a difficult and costly process and success is not guaranteed.
In some cases, we recommend that parties enter into substantial negotiations before divorcing which often results in a resolved property settlement before an application for divorce is even made or a divorce order is granted.
Former de facto couples are substantially afforded the same rights under family law legislation to a property settlement as married couples. The time limitation is different however for de facto couples, whereby they have 2 years from the date of separation to make an application to the court for property settlement or maintenance. Like married couples, the court can grant leave to apply outside of this time limit but, again, this can be a difficult process and success is not guaranteed.
Contact Daykin Family Law to discuss your options with our Accredited Family Law Specialist & Director, Shannon Daykin. Let us help you navigate separation, divorce and the property settlement process in a cost effective and efficient manner.