Divorce Lawyer Sunshine Coast
Whether you are facing the breakdown of a marriage or the end of a de facto relationship it is important to ensure that you get legal advice so that you are aware of your rights and the options available to you as you work towards separating your family and property interests.
Even if your separation and divorce is amicable and you want to untangle your lives in a friendly and reasonable way, there are some basic principles that can assist you to do what you need to do to divide your property and finalise your property settlement. All too often, the process of separating and getting a divorce is complex, emotional, and upsetting and causes the people involved anxiety, stress, and worry. At Anumis Legal, we are here to listen to your unique circumstances, review your assets and liabilities, advise you as to the options available to you and assist you to resolve your separation matters with calm, care, and efficiency. At Anumis Legal we do the right thing; we have your back, and we consider and respect what you believe to be your best outcome.
Steps that need to be taken to ensure a smoother divorce
While no two relationships are ever the same, when you separate it is necessary to split your property and work out a final settlement. One of the most important reasons for having a property settlement is to wrap up your financial ties with your ex-partner as quickly as possible.
All your joint assets, financial resources and liabilities are considered. This will include both of your superannuation and pension entitlements. When you are considering a property settlement the term property considers almost anything and everything of value, including:
Any property held in one name
Jointly owned assets
Shares or interests in a company
Family trusts as well as other trusts interests
Funds or interests over which a party has either control or influence
Assets owned prior to the commencement of, or accumulated during, the relationship; Even assets acquired post-separation may be relevant.
Prospective entitlements for example redundancy payments and long service leave may even be included depending on the individual circumstances.
Liabilities are also considered in the same way, and they will include both of your debts, credit cards, loans, tax, and stamp duty obligations irrespective of whether they are in joint names or the name of one party.
How we can help you keep your property settlement out of the courts
In many cases we assist people to negotiate with each other and/or mediate to come to mutually acceptable outcomes when finding has become difficult. If it proves impossible to come to an agreement about either your arrangements for children or your property division, then we will take your matter to court. Litigation is an expensive and stressful alternative, but in some cases, it is the only way for finality to be achieved so that you can both get on with your lives.
You can finalise a property settlement by obtaining an Order from the Court following a trial, by obtaining Consent Orders from the Court without a trial, or you can execute a Binding Financial Agreement. It saves you time and money if you can reach a property settlement agreement without going to court. There is a huge amount of uncertainty leaving a judicial officer to decide for you. Additionally, long court proceedings generally lead to increased stress, significant expense, and add to the pressure that you and your family are under at this challenging time.
If you’d like to learn more about how we can help you stay out of the courts, you are welcome to come and talk to our expert divorce lawyers about your particular circumstances so that we can advise you according to your situation. Give us a call on 07 5455 6347 or contact us online today to schedule an appointment!
What are your options in terms of financial agreements?
If you can agree your property division and finances and, if you have children, then any matters relating to your child or children, then you can enter into a financial agreement either by way of a Binding Financial Agreement, or if you want the Court to sign off on your agreement, by making an application for Consent Orders.
By entering into a financial agreement, you will be contracting out of the provisions of the Family Law Act 1975 that would otherwise determine the division of your asset pool in the event of the breakdown of your relationship. This includes all property including superannuation and your entitlements to spousal maintenance. The intended effect of the Agreement is to disregard the five-step process set out above and to divide your property and financial resources as provided for in the Agreement.
What is a Binding Financial Agreement?
A Binding Financial Agreement is a private agreement, much like a private contract between parties, and does not involve a Courts approval or intervention, or registration by any other external body or authority. There is no independent examination by a court, or any other body and it is not a requirement that the outcome it provides for be within the range of potential outcomes likely to be ordered by a court.
The Family Court can set aside financial agreements in certain circumstances which include where:
the agreement was obtained by fraud e.g., non-disclosure of a material matter. We therefore recommend that you satisfy yourself as to the other party’s assets and liabilities before you enter into the agreement; or
the agreement is void, voidable or unenforceable e.g., the binding requirements were not fulfilled; or
circumstances have arisen since the agreement was made that make it impracticable for the agreement or part of the agreement to be carried out; or
since the agreement was made, a material change in circumstances that relate to the care, welfare, and development of a child of the relationship has occurred. As a result of the change, the child, the person who has caring responsibility for the child, a parent, person with residence order or specific issues order in relation to care, welfare and development, or a party to the agreement will suffer hardship if the court does not set the agreement aside; or
a party to the agreement engaged in unconscionable conduct in the process of developing the financial agreement e.g., signing the agreement on the parties’ wedding day.
What are Consent Orders?
A Consent Order is a written agreement approved by the Court after an Application for Consent Orders and the Consent Orders themselves have been filed in the Family Court Registry. Consent Orders have the same legal effect as an Order made by a Judge after a final hearing even though you never step foot in a Courtroom.
Once filed, if the Court Registrar is satisfied that there are proper arrangements for your children, (if you have children) and that the orders sought for a property settlement are just and equitable, they will make the requested Consent Orders. “Just and equitable” means that the orders must be fair to both parties and fall within the range of possible outcomes that could have come about had a court determination been made.
What if we cannot agree on a binding financial agreement?
If your matter goes to Court, it will not look at the property at the date of separation, but at the date of proceedings, and, if it makes it all the way through the Court process, at the date of Trial. There are situations where property or debt acquired after separation by one party is brought into the property pool. That is generally why the longer the delay between separation and property settlement, the more likely that events will happen which will complicate your life and be potentially very costly to you.
The Court will not normally take account of debts incurred after the separation. Here the word ‘normally’ is unhelpful because we are left to guess at the exceptions. There is nothing in the Family Law Act 1975 (Act) which says that post separation debts will be ignored. This is inevitably a question where the Judge will be asked to exercise his or her discretion as to what is “just and equitable”. There will be factual issues as to whether the debt is legitimate and payable; whether the debt has been reasonably incurred; and whether the debt ought to be shared by the parties to the marriage and if so in what proportion. Debts incurred after separation are usually incurred by one party alone so, as a matter of probability, it is much more likely that the Court will call on the person incurring the debt to pay it.
What the courts consider in divorce cases
It is important for you to understand the issues that a court will consider when deciding on such matters, so that you know what you might be entitled to, should you need to go down a court hearing path.
Adjustment of Property Interests
There are several steps the court considers when determining a party’s entitlement to an adjustment of property interests because of the breakdown of a marriage or de facto relationship.
Step 1: Determine whether or not it is just and equitable to adjust the parties’ interests in property held by either party to the relationship.
Step 2: Identify and value all property held by either party to the relationship, irrespective of where it came from or when it was acquired.
Step 3: Consider the direct and indirect, financial, and non-financial contributions made by and on behalf of each of you, including contributions in the role of the homemaker and parent. At this stage, a percentage apportionment reflecting those contributions is usually made.
Step 4: To consider, among other things:
- the age and state of health of each of you;
- the income, property and financial resources of each of you;
- the physical and mental capacity of each of you for appropriate gainful employment;
- the disparity in the income earning capacities of each of you;
- any instances of family and/or domestic violence; and
- any commitments that are necessary for each of you to support yourself or any other person; and to decide if these factors mean the apportionment in step 3 above should be varied.
The court will then consider whether the specific order the court proposes to make to implement the percentage division decided upon is “just and equitable” in all the circumstances of your case and make any necessary adjustments.
What to expect when you come and see us at Anumis Legal
When you separate, there is a lot of information for you to get your head around when you separate. And on top of everything you need to understand, at Anumis Legal, we appreciate that you are going through an emotional and stressful time of change.
When you come and see us at the beautiful Noosa Marina, Tewantin on the Sunshine Coast, the first thing you can expect is a conversation around the table, so that we can learn about your situation with a view to understanding how we can best advise you to get the resolution you want as efficiently and fast as possible.
We will review any documentation you have provided to us and send you a written advice as to your options and your prospects.
Once you have had time to read and think about your best way forward, we will set about drafting a Binding Financial Agreement or Consent Orders to take care of your property matters and assist you to negotiate parenting arrangements and finalise those.
At Anumis Legal, we are a firm that values being your family firm. We take care of you by being responsive, understanding what you want and being on your team to assist you as you walk through the toughest of times. We have sound commercial knowledge to ensure that your property orders are “just and equitable”. It matters to us that the arrangements for your children are the absolute best they can be for you in your circumstances, so that your children can continue to flourish, even through this uncertain time for all of you.
Come and have a conversation with our experienced divorce lawyers to understand your options and take that next important step towards resolving your property and parenting matters so that your new life can begin today. At Anumis Legal, we have your back all the way.
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