Divorce & Common Law Property Settlement

One of the biggest issues for separating people is how will they distribute their assets, liabilities and superannuation moving forward?

The Court has power to adjust interests in property having regard to the circumstances of the marriage and necessity to do justice and equity.

In detail…

It is critical to obtain independent-legal advice from an expert family lawyer before resolving property settlement issues in order to understand what you are entitled to.

The reasons for this are three fold:

  • Firstly, the family law asset pool available for distribution is considered as at the settlement date and not the date of separation. This means all assets (and liabilities) acquired post separation can be included.
  • Secondly, informal property settlements are not binding on the parties. Property settlement can only be achieved by way of an order or Binding Financial Agreement (“BFA”).
  • Thirdly, transfers of property pursuant to an order or BFA may receive-tax concessions.-The tax concessions can relate to stamp duty exemption, Capital Gains Tax roll-over relief; and an opportunity to restructure your personal and business finances.

The law in relation to a property settlement is complex and you cannot afford to act on the basis of bad advice. Bad advice will likely translate into increased costs, increased delays in resolving your matter, and potentially under settling with your ex-partner.

At Hooper Family Lawyers we specialise in family law and matrimonial property settlements. Peter Hooper is a Queensland Law Society accredited specialist family lawyer with over 16 years’ experience in the law. We are family lawyers in Brisbane but we also service client’s interstate and overseas. With modern technology Brisbane family lawyers can act for people regardless of where they are situated.

We take an experienced and personalised approach to your family law property settlement matter.

Consent Orders

Propertyparenting and spousal maintenance issues can be resolved on a final basis by the parties forming an agreement, and then having this agreement recorded in a consent order.

A consent order can be made at any time during the conduct of a proceeding before a court, or prior to proceedings being commenced.

Once a consent order is made the parties are bound by the terms of the order.

The advantage of a consent order is it gives the agreement the force of being an order of the court while still allowing the parties to craft the outcome best for them.

One of the most inexpensive methods or resolving a family law dispute is for each of the parties to obtain independent family law advice, reach an agreement and then have their family law solicitors prepare the consent order.

Hooper Family Lawyers can provide you with an estimate of costs to draft your consent order application, or discuss with you fixed fee arrangements in appropriate circumstances.

De Facto & Divorce Property Settlement

Financial Agreements are private contracts between parties to a marriage or de facto relationship. Third parties can also become parties to the agreement in some circumstances i.e. the family company.

There are three situations where these agreements apply:

  • Agreements prior to marriage or “pre nuptial agreements”;
  • Agreements made during a marriage;
  • Agreements made post separation as a method of severing the financial relationship.

When Financial Agreements are “binding” they remove the jurisdiction of the court to make an order with respect to the subject of the agreement.

Financial Agreements can be very useful including for asset protection for people wanting to cohabit together or in contemplation of marriage and a Binding Financial Agreement is the best method of providing certainty with respect to Spousal Maintenance rights.

Financial Agreement must also be approached with caution.

For a Financial Agreement to be binding it must comply with legislative requirements including that each party has received specific legal advice. If Financial Agreements are not properly drafted, and advice given, they can lead to more litigation and uncertainty should one party seek to have the agreement set aside.

Hooper Family Lawyers are family lawyers in Brisbane who can draft your financial agreement, and provide the requisite advice, to ensure your financial agreement is binding, and achieves what you intend.

See Also: Divorce lawyers BrisbaneFamily Law Brisbane

Family Dispute Resolution and Mediation

In any civilised society there are only two methods by which disputes between parties can be resolved. That is by agreements between the parties or decisions from judges.

Family Dispute Resolution or FDR includes mediation which is a process by which a trained mediator facilitates an agreement being reached by the parties themselves. Generally it is also helpful and efficient for each party to have the assistance of legal representatives.

Mediation can involve discussions in a round table format or by “shuttle” where the parties and advisors are in separate rooms and they communicate via the mediator.

With some very narrow exceptions related to criminal offences, mediation is “without prejudice” which means concessions made at mediation cannot later be raised in evidence if the mediation is unsuccessful.

Mediation in property matters is often successful when both parties are well represented and well prepared; saving large sums of money that may otherwise be spent on proceeding to trial. In the event that proceedings are commenced, it would be unusual for the matter to be listed for trial unless mediation has occurred.

In parenting matters, the necessity to attend FDR is encapsulated with section 60I Family Law Act 1975. This section provides that as a general rule, unless a certificate is obtained from a mediator who is an accredited dispute resolution practitioner, a party cannot file a proceeding in court.

Spousal Support

Is your former partner seeking spousal maintenance payments from you? Are you looking for a way to maintain the lifestyle you earned whilst with your former partner? You may benefit from speaking to a spousal maintenance solicitor in Brisbane at Hooper Family Lawyers. We’ll be able to help you understand what your rights and obligations are.

Read on to find out more about what to expect from your appointment with a spousal maintenance lawyer in Brisbane.

What is spousal maintenance?

Married couples who separate (and de facto couples who separate after 1 March 2009), may be liable for or entitled to spousal maintenance. Spousal maintenance becomes an issue where one party is unable to support themselves adequately (due to having the care of children, incapacity for employment or any adequate reason) while the other party is reasonably able to provide support.

Spousal Maintenance can be provided for in a Binding Financial Agreement, in a Consent Order or can be awarded by a Judge.

Many people are aware of child support obligation but have not considered the possibility of receiving spousal support. Our expert team of spousal maintenance lawyers at Hooper Family Lawyers Brisbane can provide you with advice as to your rights and responsibilities under the law.

Tax Considerations

In some circumstances family law settlements can offer tax relief with respect to transfers of property between spouses or parties, such as, exemption from stamp duty for transfer pursuant to a matrimonial instrument and CGT roll over relief.

In other circumstances where complex financial structures exist such as private companies, trusts or self managed superannuation funds (“SMSF”) it is important to ensure the family law settlement contemplates what the tax implications will be and make appropriate allowances.

Hooper Family Lawyers Brisbane can advise you with respect to the restructuring of your affairs and drafting orders to reflect the advice you receive from tax accountants or financial planners as to the best way forward.

See Also: Divorce Solicitors BrisbaneFamily Lawyers Brisbane

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