The breakdown of a marriage or de facto relationship can provoke intense disputes as to ownership, value and distribution of property. As such, finalising property settlement is often a major step in helping separated couples move on with their lives.
The first question that might come to mind is whether or not you actually have to go to Court to get a property settlement with your former spouse. The simple answer to that is no! In fact, most family law property matters can be resolved outside of court which can save you both money and time in avoiding potentially lengthy and emotionally taxing litigation. Whilst the court may be involved when seeking to formalise a settlement, actual attendance in court likely will not be required when an agreement is reached.
Read on below to get an understanding about property settlement matters and how your entitlements are calculated.
Disclosure in Family Law is an essential part of any property settlement, as it allows you to understand and identify the value of the property pool and whether the value of any assets are in dispute. Without knowing what the property pool is, it is very difficult to know what your entitlements to property settlement are and agreeing to any property settlement in such cases can be risky.
As such, both parties to the dispute have an obligation to provide full and frank disclosure to one another under the pre-action procedures set out in legislation. Ideally, this process should start as soon as possible and will allow you to smoothly transition to the next step of engaging in negotiations to settle property matters.
Whether you were married or in a de facto relationship, there are 5 steps that a Court considers when determining how a property pool should be split. Those steps are:
Undertaking disclosure will assist with the second step above, in ascertaining the property pool available for distribution.
The third step in the property settlement process is to assess contributions. These are direct and indirect, financial and non-financial contributions made by each party or certain contributions made on their behalf.
Financial contributions may include the income earned by you as well as any gifts or inheritances received during the relationship. Non-financial contributions include any work such as renovations that increased the value of a property, as well as each parties’ share of homemaker and parenting duties. This includes things such as cleaning, cooking and raising children.
Sections 75(2) and 90SF(2) of the Family Law Act relate to the future needs of the parties which are considered when determining property settlement entitlements. Future needs generally refer to factors such as:
The Family Law Act provides that separated married couples have 12 months from the date that a divorce order takes effect to file an application for a property settlement and/or spousal maintenance. For de facto couples, the time limitation is 2 years from the date of separation. If you miss this time limitation, you will be required to obtain permission or “leave” from the court to proceed with any such application out of time which may or may not be granted, depending on the circumstances.
Knowing your entitlements to property settlement is an essential part of achieving the best possible outcome for you in your family law matters to enable you to make informed decisions. However, this may not be as easy as it seems, as there is no universal or specific formula to divide the property pool.
Working out what a party is entitled to is determined on a case-by-case basis and based on an assessment of the above as an overview. This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.
Contact us today and make an appointment with our property settlement lawyers to discuss your circumstances and needs. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
No relationship breakup is ever easy, especially when the financial burden of separation or divorce can be so heavy on the parties involved. On top of that, going to court to resolve your family law matters can be not only costly but also time consuming. Sometimes, the court process can take up precious financial and resources for years.
It is always best to consider litigation as a last resort, if you have exhausted other alternatives to resolving your dispute. It is for this reason that, in recent years, the courts have been placing greater emphasis on “Family Dispute Resolution” (FDR) processes which aim to assist parties to resolve disputes and settle matters outside of court.
Read on to get an understanding of two commonly used FDR processes for resolving disputes, namely, mediation and conciliation, and how they can assist you in your family law matter.
Mediation is a well-regarded FDR process which aims to assist parties in family law matters to settle disputes by discussing differences and attempting to negotiate a potential outcome that would work for everyone involved.
Mediation is normally facilitated by a trained third-party known as a “mediator”. A mediator is a trained professional whose main role is to act as an impartial third-party to facilitate discussions and negotiations and keep matters focused on resolving issues in dispute.
Mediation is usually a voluntary process parties agree to, however the court has also developed mandatory dispute resolution procedures in some cases in order to assist parties in avoiding the high costs involved with litigation. For example, in parenting matters, the court requires compulsory mediation to be attempted by all parents seeking to obtain orders regarding children unless an exemption applies. We consider the reason for this is because courts have recognised that mediation is, in fact, a proven and successful way of resolving many disputes.
Mediation can take place with all parties and/or their legal representatives in the same room. Or, as an alternative, it can be conducted via “shuttle”. This means that the respective parties will remain in separate rooms during the mediation, with the mediator moving between the rooms and having separate meetings with any legal representatives.
It is a requirement under the Family Law Act 1975 (Cth) that separating couples seeking parenting orders of the court need to first indicate that a genuine effort to resolve the dispute by FDR has been attempted. However, it may be the case that you find yourself dealing with another parent who is not willing to make a genuine effort in this regard, or simply the fact that an agreement cannot be reached despite a genuine effort being made. In such circumstances, a form known as the “section 60I certificate” is necessary to be filed with the court. Only registered FDR practitioners can issue such certificates and they allow parents to commence proceedings for parenting orders.
The following are five types of section 60I certificates that can be issued:
If you receive a section 60I certificate and decide to file an application in court, you will need to file it together with your initiating application.
Another common FDR process is conciliation. Conciliation is similar to mediation insofar as its main purpose is to assist the parties in reaching an agreement on the various issues in dispute and, in so doing, to avoid the incursion of further legal costs.
Legal representatives are permitted to represent parties in this process and, sometimes, are court ordered to do so.
Notably though, the main difference is that the conciliation conference is conducted by a court Registrar. A Registrar is a court lawyer that exercises certain judicial powers, such as the making of Orders. At the conciliation conference, the Registrar will look at the case from both sides and assist in exploring options for settling your case without the need for a final hearing. A Registrar cannot give legal advice, however they can talk with you about the legal principles that are applied when deciding cases.
As with mediation, the parties are expected to make a genuine effort to reach an agreement at conciliation. With that in mind, you should go to conciliation in a spirit of compromise and adopt a practical approach.
Overall, it has to be said that both mediation and conciliation is more cost-effective and speedier than litigation which can often go on for years. However, we understand that every single case in Family Law is different depending on your individual circumstances and the needs of your family.
For this reason, knowing what type of FDR process is most suitable for your case, if any, and when to consider engaging in such events, can be confusing and even daunting for many people. This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
As with most legal processes, divorce in Australia requires you to follow strict procedures and timelines. Whilst you may separate from your partner at any time, divorce is a lengthier process which will require the court’s involvement.
Fortunately, Australian divorce law is a fairly simplified process when compared to the legalities of other countries. However, there are still procedures which must be adhered to. In this blog, we discuss the timeline affiliated with divorce in Australia and provide tips for the most streamlined and time-efficient divorce experience.
Australia has a ‘no-fault’ jurisdiction, meaning that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation. Even so, you should expect the divorce process to take a minimum of four months from when you file for divorce and when the divorce order is issued by the court.
A divorce order will arrive one month and one day after a successful divorce hearing. For example, if your divorce hearing was on June 1st, your divorce order would issue on July 2nd.
You should not make plans to remarry until after you have received the divorce order from the court. Remarrying prior to receiving this order is an offence in Queensland known as bigamy, punishable by imprisonment, and your new marriage can be declared void.
It’s important to note that you must be separated for 12 months prior to filing for divorce. Australian Family Law recognises ‘separation under the one roof’, in which you and your partner separate but remain living together. In this instance, you will need to prove that you were separated during this time. A Family Law Specialist can assist in this process.
If you separate and come back together for a period of fewer than three months, you must simply prove that you were separated for a total of 12 months. For example, if you separated on 1 January 2020, reconciled on 1 June 2020, but then separated again on August 1st 2020, then you would be eligible to file for divorce on 2 March 2021; a total of 12 months separated. If you separate and come back together for a period longer than three months, the time resets.
Following the 12-month separation period, you can file for divorce yourself or jointly with your spouse. If you apply yourself, not jointly, then your spouse will need to be served with the divorce court documents. This can take time, particularly if you are unaware of your spouse’s location.
A joint application is easier as neither party have to be served with the court documents. If you and your partner are in agreement regarding the divorce and are still in contact, filing a joint application can assist in streamlining the divorce process as you will not have to wait for your spouse to be served
In setting a date for the court hearing, the court will consider whether it was an individual or joint application and therefore whether they need to allow time for one party to be served with court documents.
Divorce documents can be served via the post, through a legal service or in person. You yourself cannot serve your spouse in person, but any other person over the age of 18 can do so. This may be a friend or family member, if not a professional process server.
Employing a professional process server may reduce the time required to fulfil this step and they will usually complete an Affidavit of Service for filing, however, do consider that there will be fees involved in this process.
Keep in mind, if you have been married for less than two years, there are additional steps that precede filing for a divorce order. You will need to obtain a Counselling Certificate, which proves to the court that you have received professional counselling and considered reconciliation, or only one party attended such counselling and the was invited to attend but did not.
Engaging an Accredited Family Law Specialist will ensure that all the necessary procedures are followed correctly and accurately in the lead up to your divorce hearing, lowering the possibilities of the court adjourning the hearing to a later date which can delay the divorce order being made.
Ensure your divorce is as streamlined as possible – enlist the professionals. Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in property settlement, parenting agreements and all other aspects of family law.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3338 5645 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.
Successful co-parenting with your former partner can be tricky to achieve and may involve a period of negotiation and compromise before finding an agreeable solution. In some cases, you may not achieve a mutually agreeable solution on your own and in this instance, there are several options available to protect what matters most; the wellbeing of your shared child or children.
It is common during separation and divorce for the separating parties to harbour negative emotions towards each other. These feelings can make agreeing on terms of the separation, particularly the care of your shared child/ren, difficult or sometimes impossible.
A parenting plan is a written agreement which outlines how you and your former partner will co-parent your shared child/ren. It can detail a range of things, such as where the child/ren will live, where they will go to school, which parent will provide care and when, what will happen on special holidays and birthdays and how a child will communicate with their parents. The plan can also detail agreed-upon parenting styles, a particular faith/religion that will be taught at home and any required healthcare plan specific to the child/ren.
A mutually agreed-upon plan can provide structure and routine to a child/ren’s life during what can be a volatile, emotional and distressing time.
Remember, circumstances change and so to can the plan. As children age, their needs and preferences change, so keep communication with your former partner open so that the plan can be revised in future. If needed, set a date to review the plan with your partner so that you can both feel assured that it is always the best solution for your child/ren.
The Family Law Courts can hand down an order which dictates what parenting arrangements will be in place for a child until they turn 18. While for some, enlisting the Court’s help is the only option for achieving a resolution, it should only be considered a final resort. Receiving a decision from the Court is not only a costly exercise which can be drawn out over a long period of time, but the final order can also feel impersonal for your family, as it is a legal directive, rather than an arrangement that your family have devised together. You give over control to the Court, which is unsuitable for many families.
Before turning to the Courts, there are several support resources available to families.
A family report, prepared by an unbiased third-party professional, assesses the family dynamics, a child/ren’s wishes and their needs to create a recommended parenting arrangement. This report can also be submitted as evidence to a Court if the situation demands a Court decision.
A family dispute resolution mediator can also act as an unbiased voice of reason between yourself and your former partner. Unlike the Court, a mediator will work with all affected parties to determine the best solution, rather than handing down a legal directive.
Utilising a mediation professional is also an opportunity for both parents to discuss their wishes and concerns regarding their child/ren’s relationship with their other parent and the future, without needing to converse directly with their former partner, which could potentially start an emotionally-fuelled argument.
No matter which solution you turn to, it is important to remember that your main concern should always be the health and happiness of your child/ren. During a separation or divorce, when emotions are running high, parents can often fall into the trap of letting their negative emotions towards their former partner restrict the possibility of reaching a solution which is best suited for the child/ren.
It is important that children feel loved, supported and safe as the family transitions after separation. Never argue with or speak negatively of your former partner in front of the child/ren. While you should keep communication with your child/ren open and encourage them to discuss their feelings openly with you, never ask them to pick sides or make a final decision regarding their living arrangements.
Whilst family and friends may give you advice and mean well, it should not replace the sound and pragmatic advice of a family law specialist. The danger with this is that the legal system is complex and how you conduct yourself is important. A wrong turn with how to handle certain important situations can be disastrous, not only for the objectives you want to achieve but could also have a negative impact on your children. We guide clients through post-separation issues by being upfront about the things that might cause unnecessary dispute. Similarly, we provide clear advice when needed on when a firm approach is needed to protect what matters most.
Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in family law and parenting agreements. Contact us today to discuss all your options in order to achieve a positive solution as efficiently as possible.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3338 5645 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.
Property settlement can be a substantial part of separation and divorce. Whilst valuing tangible property such as homes and cars is relatively straightforward, valuing a business is usually more complex. One of the first questions we are asked by self-employed clients is what impact a separation may have on their business. This is a valid worry – you’ve spent years building a business, only to find suddenly your livelihood may be at risk or operations may be impacted by a separation. We’ll take a look at business valuations in a property settlement in this article, outlining some of the key considerations and next steps.
Whether the business in question is your former partner’s, yours or jointly operated by you both, it’s important that you and your former partner seek to agree on a value together and ascertain any issues in dispute that are a roadblock to an agreement. The party who wants to keep the business could undervalue the business or claim that they alone create the value of the business; particularly relevant when an individual’s specific expertise or skill set is the main offering to customers, for example, an interior designer.
We often recommend calling upon a trusted accountant, who is aware of the business position and its history, potential tax consequences of any proposed settlement and issues to be considered for asset protection. A familiar third party can often play a positive role in achieving a settlement sooner and potentially avoid the cost of an independent valuation in some cases.
You can engage an expert, third-party forensic account with experience in business valuation within family law cases including those in court proceedings. Any professional involved in the valuation process must be willing and able to present their professional findings in court. How you engage this expert is important. If not engaged properly, the evidence from the expert may be subject to challenge later on if an agreement can’t be reached.
Generally speaking, one valuer will provide a final ruling on the business’ value. You may request to use a separate valuer to that of your partner, but you must present a strong argument as to why the court should accept this evidence.
Engaging a secondary valuer can be costly and time-consuming, so the best outcome would be an agreed approach between both parties. Ordinarily, the valuation cost is shared equally between parties unless one party requests additional information from the valuer which increases the cost significantly. In this instance, the two parties should negotiate the allocation of cost.
The valuer’s report will include the final valuation and how they arrived at that valuation. Businesses can be valued using a range of different methods and each method examines the business from a slightly varying perspective. A particular approach may be the most appropriate to an individual case, depending on the business set up or the industry
A fair market valuation assumes a scenario in which there is a willing buyer, a willing seller and neither party is under compulsion to buy or sell. If we imagine a family business in which you have a 20% stake and your parents hold the remaining 80%, your parents have the majority vote in decisions regarding the business. A fair market valuation assumes a willing buyer but in reality, finding an investor for a business in which your parents have full control in that scenario is unlikely. It may be that your share value is discounted. This is just one example of issues that business valuations traverse.
Any form of valuation will consider the business profits, assets and any other relevant information required to provide an accurate and unbiased final valuation. Providing any and all the relevant documentation quickly and in an organised fashion allows for a smooth and therefore cost-effective process in which an accurate result can be obtained.
In providing information, do not disregard loan accounts in which you or your former partner may owe money to the business, or the business may owe money to you or your former partner. A full analysis of realisation and other taxation costs may be crucial to the valuation and should not be overlooked. Mistakes can be made when overlooking such issues, which can have a marked impact on any settlement to a party’s detriment if not fully identified ahead of time.
Business valuations are an important part of the property settlement process, but just one part of a larger picture. When you’re dealing with the stress of a relationship breakdown, you need reassurance that you’ve got an experienced legal professional in your corner. We take a no-nonsense and pragmatic approach to advising our clients, guiding them on the path that will best achieve their goals, protect their interests and allow them to get on with the important job of running their business or home or whatever else should be taking priority.
We work with a range of top-level forensic accountants to assist our clients in identifying issues and helping them reach an early resolution to property settlement wherever possible.
Contact us today for an initial consultation with Shannon Daykin, Daykin Family Law’s Director, an Accredited Family Law Specialist with a wealth of experience and expertise in family law and complex property settlement. We’ll discuss your business, how to protect your interests and how we can assist in resolving your property settlement as efficiently as possible.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3338 5645 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.
At Daykin Family Law, we work with our clients to resolve matters in a cost effective and timely manner, which usually means staying out of Court wherever possible. The Court system can be complex, costly and time consuming. In many cases, alternative methods of dispute resolution can achieve preferable outcomes, without the added stress that can arise through a Court battle.
Speaking to, and taking advice from, a lawyer does not necessarily mean going to Court. The can be a common misconception of some. Instead, getting legal advice can empower you to make educated decisions that are best for you and your family.
So, how can you avoid going to Court whilst coming to a suitable arrangement in your family law matter? Here’s a closer look at the different types of alternative dispute resolution commonly used in family law cases.
Whilst it can seem impossible at a time when emotions are running high, coming together to calmly and rationally discuss disputes is often all that is needed to ultimately resolve them. Family Dispute Resolution (FDR) can be a really effective means of increasing the chances of early resolution, so that both parties can move ahead.
If you and your former partner disagree on allocation of property, parenting issues or family matters, Family Dispute Resolution could help. FDR is a confidential process whereby someone trained in dispute resolution will help reach a consensus acceptable to both parties. The FDR process is provided by organisations such as Legal Aid and Relationships Australia and can also be facilitated by lawyers, social workers and mediation practitioners.
Lawyers can assist before and during, for example, gathering the relevant information required and negotiating in advance those matters to allow you to reach an agreement in an informed and supported manner.
Similarly to FDR, mediation can be used to resolve property and parenting matters. The process begins with an individual, confidential session between you and the mediator to outline the issues that are most important to you, before mediation commences. Most mediation sessions are facilitated by private practitioners, including lawyers, barristers, social workers and other accredited mediators. If mediation is right for you, we can recommend a mediator that will be a good fit for your matter.
Depending on the scope of the dispute, negotiation can be an effective means of dispute resolution. Negotiation is particularly beneficial when the parties are unable to or uncomfortable directly engaging in discussions with each other. For example, in situations where clients have experienced domestic violence. Negotiation can occur between lawyers and/or in separate rooms, to avoid direct contact between clients.
The process of arbitration is where the parties choose a private arbitrator to decide how their property is to be divided or whether spousal maintenance is payable.
Both parties present their arguments and evidence to the arbitrator, who then makes a determination. Their decision (or ‘award’) is delivered within a specified period, making it a drastically quicker solution than going through the Courts. Arbitration is voluntary and can be undertaken either by the parties on agreement or by a Court order.
Collaborative Law is similar to mediation in some ways, however each party will have their own legal representative who is collaboratively trained. To reach an agreement, a series of face to face meetings are held with both parties and their lawyers, to discuss issues openly and in a non-confrontational manner. Should the parties be unable to reach an agreement and Court proceedings are necessary, the lawyers must withdraw from the case and neither can act for that client in Court. This is to ensure that all parties are committed to settling collaboratively and avoiding litigation.
Such lawyers should be specifically trained in the collaborative process to ensure they possess the necessary skills to successfully engage with all parties. To find out if collaborative practice is right for you, check out our detailed article on Collaborative Law here. Director, Shannon Daykin, is a trained Collaborative Lawyer.
Should alternative dispute resolution fail for you, or litigation is necessary, for example in matters involving child safety, domestic violence or where talks fall flat, then the matter will most likely be taken to Court. Find out about the process here.
In any case, family law matters can be complex, even when both parties can communicate well and mutually agree on matters. So it’s important to get proper legal advice from the outset to ensure you reach the most desirable possible outcome for your circumstances. Daykin Family Law can assist you in creating a personalised plan unique to your situation.
Daykin Family Law’s Director and Principal Lawyer, Shannon Daykin, is a Brisbane based family lawyer is collaboratively trained, an Accredited Family Law Specialist and has a wealth of experience and expertise in family law. If you’re considering your options for resolution and would like to keep the matter as stress-free as possible, contact us today for a no obligation consultation to find out what’s right for you.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3338 5645 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.