separation Archives | Page 2 of 2

It’s often said that January is ‘Divorce Month’, a time where there is suddenly an influx of separations and ensuing divorce proceedings, however is this really the case? Today’s blog looks at why January has this reputation and what to do if you find yourself in this situation.

It is true that many family lawyers find themselves busier at the start of the year, with a reported spike in breakups of about 30% in January. This could be due to a myriad of factors, but may be associated with more time spent together over the festive season and the stress that can sometimes cause, for example an extended period of time spent unoccupied with work and the regular mundane distractions.

There has been reported anecdotal evidence of three main factors that contribute to the increase in separations and the onset of divorce proceedings in January, these are:

The increased time spent together during the holidays: it’s fair to say that holidays are known to be a period of switching off and spending time with loved ones. This increase in quality time can have an adverse effect when a couple is under a period of certain strain, and can often heighten the stresses and existing relationship difficulties. This time of year may exacerbate existing issues and doubts in couples and bring their problems to the surface, becoming more clear and suddenly difficult to ignore.
New year resolutions: with a new year brings new resolutions. This is often a time for self-reflection and plans for self-improvement. When a person has been dealing with stagnancy or unhappiness in their relationship, the new year can be a time for renewal and growth. This is often a purposeful time where individuals feel they can make the difficult decision to end a relationship in search for a clean break and a more positive future.
Christmas spent with the family: usually a period of time where family holds the most meaning, and usually the most amount of time. Couples with children may more likely to resist ending their relationship during this time as they do not wish to cause strain on the family dynamic and result in stress to the children. Additionally, this period results in a lack of time and resources available for couples seeking legal advice due to taking care of the children. It is because of this that parents may choose to separate in this time as they are now provided the space to make decisions without the pressure of Christmas.

This was further backed by a 2016 report by the University of Washington who conducted research from hard data on divorce filings over a 14 year period. The evidence showed a clear and consistent rise in divorce proceedings beginning in January more than any other month of the year! The researchers behind this study noted the significant impact that the above points had on this pattern.

What should I do if I’m considering getting a divorce?

When you come to the conclusion that separation is the best option for yourself and your partner, the flood of information available can be overwhelming. It can be difficult to seek out factual information, understand your legal responsibilities, grapple with the division of property and finances on top of parental arrangements. In this time of heightened stress, it is important to have someone reliable you can speak to, someone you can trust and someone who can help to support you emotionally and logistically and who can also assist you in getting the best outcome available for you and your family.

When planning the next steps of separation towards divorce, a helpful list of practical steps supported by useful information is the perfect place to start. We recently wrote a blog on the basics of divorce to assist in this exact situation, this resource can be found here: https://daykinfamilylaw.com.au/the-basics-of-divorce-applications-2/

The main things to consider when beginning the first stages of the divorce process are:

Financial and Property Settlements: one of the most important and stressful elements when it comes to divorce and the negotiation of assets among divorcees or separating couples. The levels of complexity of each of these settlements lies with each individual couple, sometimes agreements can be straightforward and made easy, other times no agreements can be reached and court action may be required. In the latter instance, it is advisable to work with a specialist family lawyer who is able to assist in the resolution of these differences. It is also important to consider other advice needed, such as financial advice and taxation advice. This is to ensure any agreement reached or orders sought are appropriate for your situation.
Parenting Arrangements: another complexity when couples begin the separation process is the responsibilities around children and how to navigate the arrangements in the best interests of the children. The principal consideration in any parenting arrangement by law is that the best interests of the child are paramount. Negotiations and agreements often focus on many factors including where the children will live and how much time each parent will spend with the children considering holidays, birthday commitments and special days. Other agreements can be reached around communications, travel and addressing specific issues.

It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to Court. If you are seeking legal advice about your separation, or just need to understand your options further, Daykin Family Law can help.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. 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.

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.

Christmas is considered a very special time of the year for many people around the world, but for some it can be a time of sadness and frustration. Following a relationship breakdown, Christmas may seem like a daunting time, particularly when parenting children across separate households.

Where both parents are willing and able and there are no safety concerns to consider, the best outcome of a separation is co-parenting. This is where both parents agree to put their children’s interests first and to communicate in a respectful, child-focused way, setting boundaries and compromising to lead the way to effective co-operation.

Here are some ways in which you can ensure the best chances of ensuring a happy and healthy Christmas this year for your children:

1. The kids come first

When making decisions, always consider what is in the best interests of the children. Younger children may worry about whether Santa will reach them, whilst older children might have a preference for where they spend Christmas. Bringing them into the decision-making process can be beneficial for the whole family and make children feel heard.

2. Communication is key

Each parent should communicate their expectations in advance with each other as it is important that both parents understand the other’s needs. Being prepared, realistic and willing to listen and compromise may make a stressful situation more manageable.

3. Sharing of Christmas presents

In regards to Christmas presents, consider agreeing on a budgetary limit so as to avoid one parent being perceived as giving more than the other. To try and preserve some form of normalcy, both parents can agree to buy one main present for each child signed from both parents. This approach will demonstrate a united front.

4. Sharing of time with the children

You may decide that your children should spend Christmas Eve at one home and Christmas Day at another. Whatever you decide when co-parenting at Christmas, you can find ways to make it special for the children, and extended family too.

5. Travel arrangements

Where traveling will be involved with one of the parents over Christmas, it is advisable to make sure the other parent has agreed to the plans, or that a compromise can be made for time spent together before or after the travel period if a Parenting Plan has not yet been agreed upon.

6. Avoid any fighting

When discussing Christmas plans, ensure the discussion does not end up in a fight, especially in front of the children. Research tells us that this may perpetuate any guilty feelings the children may have over the separation. Try to communicate in a clear and respectful way and ensure the children are not exposed to a dispute.

7. Send updates

Agreeing on an ‘update’ style of communication can be beneficial. You can report on activities, send photos of particular events and help the other parent to feel involved. Give and ask for information that you expect to get as a parent in a timely manner.

8. Accommodate the feelings of the children

Where the children may start to miss the other parent, consider allowing the children to contact the parent so as to alleviate their anxiety, especially where the children are still young. It is important that the children are not made to feel guilty for experiencing such feelings or feeling ‘stuck in the middle’ of a separation.

9. Involve the children in the Christmas planning

When the Christmas arrangements have been planned and agreed between both parents, it can be important to communicate these plans to the children so that they feel involved and that there are no surprises for them.

10. Be flexible and listen to the needs of the children

Where the children feel uncomfortable with any Christmas plans, it is important to take their feelings into consideration and consider whether any plans could or should be amended so that they feel safe and assured. Like the first tip, the children come first, so keep their best interests at heart.

Holidays like Christmas may be a difficult time for children especially young children therefore it is vital that each parent put aside their feelings and ensure there is a smooth transition for the children during this time. Despite all of your efforts, it is possible that difficulties may still arise. You can take responsibility for what you do as a parent, however you cannot be responsible for how the other parent behaves. If you find yourself in this situation where the other parent will not cooperate, remember that help is available.

If you’ve tried all the above tips but have difficulties communicating with the other parent after separation, you may need to consider other options. This may include engaging a lawyer to help negotiate plans on your behalf, or engage the assistance of a mediator to assist in facilitating an agreement.

Our separation and divorce lawyers can assist you through the process to come to an amicable agreement regarding parenting arrangements.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was recently named as one of Brisbane’s Leading parenting lawyers 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.

Separation or divorce can be an emotional journey that can have both physical and mental health effects on people. The separation and divorce process, coupled in some situations with the family court process, can become incredibly stressful, taking a toll on the wellbeing of parties, sometimes impairing their judgment and decision-making abilities.

Literature tells us that separated couples going through the process might experience a range of overwhelming psychological symptoms that includes loneliness, sadness, shock, anger, uncertainty, guilt, betrayal, frustration, hopelessness, or a mixture of all. These feelings can last a short-time or have a lasting impact and so it is important to deal with those feelings in a healthy way.

Mental health is a vital aspect of our wellbeing. Many people see mental health issues as only serious disorders or health conditions, however things like stress can have a big impact on mental health. It’s easy to shrug off your own feelings, particularly when juggling work and parental responsibilities, however it’s important to prioritise self-care.

Here are a few ways parties going through a separation or divorce might consider when prioritising their mental health.

Ways to Protect Your Mental Health During Separation or Divorce

1. Talk

It can be important to talk things out. Even when your feelings are particularly strong, you should try to communicate them to a trusted confidant.
Endeavour to build healthy relationships and surround yourself with a support team of people with similar values as you, who understand and who can listen to you.
Your support team can include a family member, friend, colleague or a third party counsellor.

2. Acknowledge the pain

Acknowledging the feeling of loss caused by separation can be crucial. When couples separate due to the death of a partner, there is a defined grieving process of denial, questioning, depression or anger, evaluation, and acceptance.

On the other hand, when a partner is lost due to separation or divorce, many partners find themselves without clear guidance on how to process the loss. Our review of literature in this area tells us that some couples have found it helpful to follow the ‘five stages of grief’ model:

Denial
This occurs at the beginning of the separation or divorce process. At this stage, couples find it difficult to accept that the relationship is coming to an end. It can be normal to have a feeling of denial when you go through such a major life-changing event as separation or divorce. It is a form of coping mechanism people use.
Questioning
At this stage, you question whether there is a way you could have handled things differently besides going through separation or divorce. At this point, you may wish you could change the past and the events that led to the relationship breakdown.
Depression or Anger
You may experience anger, anxiety, depression as different negative feelings begin to emerge. At this stage, you may benefit from the added support of loved ones or professionals.
Evaluation
At this stage, you might begin to weigh the reasons that your relationship didn’t work and this may include taking responsibility for your part in the breakdown.
The factors that led to the breakdown of your relationship may be difficult to process, but evaluating what went wrong and taking ownership where required can help in moving on. While evaluating, no matter what caused the breakdown of the relationship, it is important to allow yourself to acknowledge the emotions that come with this stage.
Acceptance
This is the stage where you accept what has happened and take steps to move on or look towards the future.
It is important to remember that every individual is unique and process grief differently. It may be totally normal if you don’t fit into a particular grieving model.

3. Maintain physical health

We all know that physical health is closely connected with mental health. Stress that persists for a long time can cause health problems which can have a tremendous impact on mental health.

It therefore becomes paramount that you maintain or improve your physical health when going through the process of separation or divorce. It might be of help to partake in stress-reducing physical activities that fit into to your lifestyle such as swimming, walking, jogging, bike riding, or having a good night’s sleep.

4. Stay positive

It can be daunting to have a positive outlook when dealing with an intense life transition such as separation or divorce.

It is crucial however to try to swap the negative feelings and emotions that come along with positive thoughts. Positive emotions have a way of translating to healthy mental wellbeing. Think of the things that are within your control and then make a plan to improve them, if needed.

Optimistic thinking has been shown to enhance mental and overall health.

5. Take time to review what matters to you

The mental stress of divorce or separation can make you lose yourself. This might be a good time to review what matters to you and a time for reconstructing who you are again.

Find what matters to you – this could be spiritual or religious beliefs, music, art, or other activities or hobbies that bring you joy. Rediscovering purpose and remembering the positives in life promotes good mental health. It can also be a means of coping through separation or divorce.

At a stressful time, it is vital to have a trusted advisor on side to help you through the maze of separation. At Daykin Family Law, we strive to make the separation and divorce process as collaborative and conflict-free as is possible.

Daykin Family Law’s Director, Shannon Daykin, is a Brisbane based family lawyer and an Accredited Family Law Specialist with a wealth of experience and expertise in family law. If you’re considering your options for divorce resolution and would like to keep the matter as stress-free as possible, contact us today for a no obligation consultation to find out if it’s right for you.

If you are concerned about your mental health or wellbeing, we recommend that you contact Beyond Blue on 1300 22 4636.

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 parties to a marriage or de facto relationship receives an inheritance during 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 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 think that the inheritance was given for the benefit of both partners 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.

Can my ex-spouse or ex-partner claim part of my inheritance?

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 finalise 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 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 situation. However, the court may consider the following factors to make the decision:

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The time the inheritance was received

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 the 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.

Contributions made by the ex-partner to the inheritance

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, and 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 the property settlement.

The size of the inheritance

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.

Relationship of the ex-partner with the Benefactor/Testator

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.

Summary

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 several 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 if the relationship ends.

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.

If you have separated from your partner and have care of the children from that relationship, you are, in most circumstances, able to apply for financial assistance from the other parent to contribute to the costs of raising those children, in the form of child support obligations.

Child support stems from a fundamental principle that both parents have a responsibility to provide for their children. After separation, whether married or de facto, an agreement can be reached regarding the type and level of child support that is paid from one parent to the other to make sure that a child is supported financially by both parents. Child support is an ongoing payment that is purely for the financial support of a child from that relationship.

The area of child custody can be fairly complex, particularly if parents cannot come to an amicable agreement or there are extenuating circumstances that require the intervention of the Court. In our previous blog post, you can find out in more detail how to get child custody. Today, we’ve summarised the key things we think you need to be aware of when considering your child support obligations.

How long the obligation lasts

In Australia, child support obligations continue until a child turns eighteen years of age, or to the conclusion of Year 12 if the child turns eighteen during that year of schooling. However, in order for the obligation to continue to the end of Year 12 a specific application must be made. In some circumstances, the Court can order for a parent to financially support an adult child of the relationship.

There are certain circumstances in which the obligation can be stopped early, for example:

If the child becomes self-sufficient
If the child marries or enters into a marriage-like (de facto) relationship
If the child is adopted
If the child dies

On the other hand, child support can also be extended in circumstances where, for example:

The child over 18 can’t support themselves because they are completing their secondary or tertiary education
The child over 18 has a mental or physical disability

This is called adult child maintenance. If you would like to receive child maintenance for your adult child, or you have been asked to pay adult child maintenance, you should get legal advice.

How to calculate child support

The procedure for paying and receiving child support is governed by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

The actual process of assessing the amount of child support can be quite complex, but in general terms it involves the use of an 8 step formula;

work out each parent’s child support income
work out the parents’ combined income
work out each parent’s income percentage
work out each parent’s percentage of care
work out each parent’s cost percentage
work out each parent’s child support percentage
work out the costs of children
work out the child support amount

In practical terms, the simplest way to work out your potential child support contribution or what you are likely to receive is to use the Department of Human Services Child Support Estimator. The estimator takes you through each step and provides a calculation based on your individual circumstances.

How to pay or receive child support

There are various ways in which you can organise and manage your child support payments. This will depend on your individual circumstances as well as how able you are to communicate with your ex-partner.

Child support can be paid:

Through the Child Support Agency periodically
Privately following an assessment
Directly between the parents (self-managed)

If you and the other parent are not able to communicate effectively, it may be advisable to organise your child support payments though the Child Support Agency by opting for the ‘Child Support Collect’ method.

You are able to change to another arrangement at a later date if you find you need to, however the parent receiving the child support must agree to the change in payment method.

If either the payer or payee are living abroad, child support payments may still apply. If this is the case, you should seek legal advice.

What happens if your child support matter goes to Court

There are limited circumstances where child support arrangements go to Court. Most child support disputes are handled outside of the Court. However, some examples where a case may go to court are:

where the paternity of the child is in dispute;
if you have property or parenting proceedings underway and you need to dispute an assessment which does not take into account a parent’s proper circumstances;
if you are in proceedings for property or parenting matters and you want to halt any assessment process pending the outcome;
to set aside or vary a child support agreement where the other parent won’t agree to stop or change the arrangements set out in the agreement.

Compiling the correct documentation, serving other parties and the ensuing evidence gathering and subsequent hearing can be complex. It is vital in these circumstances that you seek independent legal advice from a family law specialist.

Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody. Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended).

Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.

We will 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 today.

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.

How do we go about dividing property and assets?

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.

Who pays the mortgage after separation?

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:

Contact the lending institution and inform them of the circumstances. It may be better that they are aware of the reason for defaulted payments and may be able to reach a compromise with you on repayments pending final division of your property through the Family Court or Federal Circuit Court.
If you and your partner can agree to sell the property, this will ensure the mortgage is paid. Any proceeds following the sale can be held in a trust account until you reach an agreement with your former partner.
In some circumstances, you can obtain a Court Order for spousal maintenance to force your partner to contribute to ongoing mortgage payments.

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.

We’ve separated. Who stays and who goes?

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.

We were in a de facto relationship. Can we still apply to the Court for Property Orders?

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:

the separated couple have been living together on a genuine domestic basis for two years or more; or
there is a child of the relationship; or
a party has made substantial contributions of a certain nature and serious injustice would result.

Can we begin the property settlement process before we divorce?

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.

We have children. Will this affect the property settlement process?

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.

What do I do now?

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.

What is Property Settlement?

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.

What is ‘Property’?

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;

Your family home
Holiday home
Cars
Boats
Household effects (anything from the sofas to the cutlery)
Personal items such as jewellery and clothing
A business
Savings and superannuation
Shares
Debts
Credit cards
Leases such as Hire Purchase Agreements
Family pets

It can also include property you held in your own name prior to the relationship, or property you acquired following separation.

Do separating couples need to have a Property Settlement?

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.

What are the time constraints for Property Settlement?

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.

I’ve heard that property is usually split 50/50 in a property settlement. Is that true?

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;

How much money each party contributed
Contributions made towards parenting and homemaking
The length of the relationship
Non-financial contributions
The current and future needs of each person

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:

Ascertaining the legal and equitable entitlements of both parties (which can include assets in another person’s or entity’s name), known as the “property pool”;
Assessing whether or not it is just and equitable to make orders for property settlement and, if it is, assess each party’s financial and non-financial contributions to the property pool and the relationship;
Considering other relevant factors which will impact on your entitlement, such as your state of health, discrepancies in respective earning capacities and care of children of the relationship under the age of 18 years; and
Considering whether the structure and monetary outcome of the proposed settlement is just and equitable or, in other words, appropriate

What if my ex-partner doesn’t want a Property Settlement?

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.

How do I start the Property Settlement process?

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.

What should I do next?

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.

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.

Divorce in Australia

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.

Options for finalising a property settlement

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:

Entering into a binding financial agreement; or
Applying to the court for consent orders.

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.

A formalised property settlement will usually be required

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.

Time limitation for property settlement – married couples

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.

What if we weren’t married?

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.

Talk to an expert

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.

One of the first questions we are often asked by our business owner clients is what impact a separation is going to have. You spend years building an empire, whether it be large or small, and you are understandably anxious about how separation will effect what you’ve built and what the future holds.

The first step is to ensure that there can be no immediate impact on the running of your business. Any fallout from the inter-personal relationship with your former partner or spouse must be managed so that it does not impede its operational running or damage its reputation. We assess the risks with you as some urgent matters may need to be attended to, particularly if your ex has access to business accounts, important documents or the premises or staff generally.

In more severe cases where attempts to curtail damaging behaviour have been exhausted, or urgent and swift action is required, there a range of remedies available from the court. This can include restraining a person from taking certain steps which may cause loss to you or the business. In our experience, a firm approach from the start can assist in resolving such issues quickly without litigation. However, where harm to business operations is imminent, an application may need to be filed with the court without delay to protect your business and assets.

Once any urgent issues are identified and dealt with, attention can be focussed on crafting a settlement to finalise the financial aspects of your separation. Settling matters early can save on legal costs and the emotional strain associated with protracted negotiations or litigation.

An initial step towards this finality is making disclosure of your financial circumstances. In our experience, the quickest way to create tension, distrust and a sharp escalation in fees is to be opaque in the way someone discharges their duty to make full and frank disclosure. If an opposing lawyer deems that the other party is refusing to make disclosure or is not being forthcoming with the documents needed to advise their client, chances are they are advising on their end to file proceedings in the court to obtain an order for disclosure. This should be avoided as there are lengthy queues in the court and litigation can be costly. We will guide you on the necessary documents to disclose having regard to the nature of your entities and extent of your assets, liabilities, superannuation and financial resources.

It is often a good idea to involve your trusted accountant at an early stage if they were not already involved from the outset. We have had many initial meetings with clients and their financial advisors to gain clarity at the first meeting about what clients want to achieve and how value can be added to their affairs through restructuring as part of the family law process. It is also important to be across any potential taxation consequences of a proposed settlement, Division 7A issues, the structure itself (including trusts interests of the parties and associated issues), future asset protection and other such important matters.

In some cases, the accountant is also trusted by the former spouse or partner and can play a positive role in achieving a settlement sooner, such as facilitating the efficient exchange of disclosure and even in reaching agreement on a value for a business to avoid the cost of an independent valuation as part of the family law process.

Coupling anxiety about what the future holds for your business with the emotional stress of a relationship breakdown itself can take a significant toll. 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.

Contact us today for an initial consultation with Shannon Daykin, an Accredited Family Law Specialist, to discuss your business, protecting your interests and how we can assist in resolving your property settlement as efficiently as possible.

What about the fur babies?

Relationship breakdowns are one of the hardest things any person can go through. We know that this can be even more challenging when there are children involved. But little focus is often given to the family’s animals and where they fit in from the outset. For many, “fur babies”/the family’s pets are like children.

The Family Court and Federal Circuit Court however does not see it this way. The Family Law Act (1975) Cth does not make specific reference to pets and they are essentially treated in family law as assets to be adjusted between the parties. So, just like the car or the caravan, the pets are often allocated to one party or the other.

This also means that the Family Court and the Federal Circuit Court cannot determine the shared custody arrangements for your beloved furry friends. While some fur parents are choosing to enter into agreements just like a parenting plan for children, or record an agreement by way of a Notation to proposed orders, the Court has no power to enforce these ongoing arrangements.

If a pet is an asset, what is the value? For some, the answer is: priceless! For the Court, this is not so clear. The value of an animal is what the market dictates, so the market value. Generally, a nominal value is attributed to pets unless they are show dogs or pedigree animals.

What if you can’t decide on who is to keep your pet? It’s similar to how a determination is made by the Court about who keeps any other asset. The Court will consider who the animal is registered to, who takes primary responsibility for the animal and where the pet can be appropriately housed. Past case law tells us that any attachments by a child of the relationship to a pet may be a weighty factor.

Some overseas jurisdictions have moved towards shared care arrangements for pets but, as yet, the Australian Legal system is yet to catch up.

Contact Daykin Family Law today to talk about how we can help you separate amicably and reach an early agreement without running up unnecessary costs.

First published 17 November 2017