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Property Settlement Agreement – Can the Court Split Employment Bonuses?

What is Property?

When negotiating a property settlement agreement, one of the first steps to be considered is what property you and your former spouse have or own. This step is important as only property can be subject to a property settlement agreement. The Family Law Act defines property as “any property in the possession of either party, either vested or in remainder.”  Property of the relationship generally includes:

  • All assets that are owned, g. the family home, motor vehicles, personal items
  • All assets under your control, e.g. a business, superannuation, shares and funds at bank
  • All liabilities, e.g. mortgages, credit cards, hire purchase agreements

Are Employment Bonuses Property?

In the case of Ilannello & Ilannello (No 3) [2018] FCCA 3752 (19 December 2018) the Court considered the question of whether the wife’s future employment bonus payments could be the subject of a property order. [...]  READ MORE →

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Judicial Mediation: A New Option To Resolve Your Dispute

As of 1 January 2019, parties to a family law dispute and their marriage lawyer, in appropriate cases, may now have the option of Judicial Mediation in the Federal Circuit Court of Australia. Judicial Mediation is not intended to replace or substitute private mediation. Rather, the court expects that parties to a family law dispute exhaust all mediation alternatives, such as private mediation with a private mediator, prior to Judicial Mediation.

The Judicial Mediator

The Judicial Mediator may not be the Judge that would ordinarily determine the family law dispute. This Judge is referred to as the Docket Judge. Where both Judges consent, the Docket Judge may refer the proceeding for Judicial Mediation to another Judge. [...]  READ MORE →

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Quick Questions Answered: Property Settlement Agreement

  1. What is a Property Settlement Agreement?

A Property Settlement Agreement contains the agreed terms to divide property between you and your former partner following separation. This includes assets, liabilities and superannuation.

  1. When Can I Get A Property Settlement Agreement?

You can finalise a property settlement agreement as soon as you and your former partner have decided to separate i.e. end your relationship.

  1. What if we are still living under the same roof?

You can be living under the same roof but still be considered ‘legally separated’. You do not need to be living in separate households; however, your relationship does need to have ended. [...]  READ MORE →

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Family Violence and Your Property Settlement Agreement

At the end of a relationship, couples are often faced with the issue of dividing their property. Due to the emotional nature of relationship breakdown, this task often proves tricky for even the best of couples. Where the couple is unable to come to an agreement, the Family Law Act 1975 (Cth) empowers the Court to make a property settlement agreement that it considers appropriate. In coming to a property settlement agreement, the Court considers financial and non-financial contributions to the relationship and the future needs of the parties. The conduct of the parties is generally not a relevant consideration. [...]  READ MORE →

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I Didn’t Know – How You Can Get Out of A Property Settlement Agreement

The Family Law Act 1975 (Cth) s 79A(1)(a)  allows the court to vary or set aside a property settlement agreement where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance. This includes where one party has failed to disclose his or her true financial circumstances. However, not every failure to provide full and frank disclosure during a property settlement agreement will amount to a miscarriage of justice. What is needed is to show that the failure to disclose has led the court to make an order that is substantially different from the order it would have made if full disclosure was made: Barker & Barker [2007] FamCA 13 [123]. [...]  READ MORE →

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Property Settlement Agreement

The law encourages parties to negotiate and reach an amicable agreement as to the division of property following separation. If you have come to a Property Settlement Agreement with your former partner then you may wish to formalise this by entering into a binding property settlement agreement.

Sometimes parties come to an agreement without having properly considered the nature and effect of their agreement.

When negotiating a Property Settlement Agreement some things to keep in mind include the following:

  1. Property Settlement Agreements differ depending on your particular set of circumstances.
  2. A fair Property Settlement Agreement may depend on the length of your relationship or marriage and this is just one of the factors to be considered.
  3. There may need to be an adjustment for financial contributions made prior to the relationship by either party.
  4. There may need to be an adjustment for one of the parties’ future needs such as their age, health, ability to work and their earning capacity.
  5. There may need to be an adjustment in favour of the party who has the greater care percentage of any children under the age of 18 years.
  6. There may be additional adjustments required for any loans to the parties from one of the parties’ parents or family members. You may also need to consider the nature of any gifts from either parties’ parents or family members.
  7. There may need to be an adjustment for any inheritance received by a party and considerations need to be had for when the inheritance was contributed to the relationship
    i.e. before, during or after the relationship and/or marriage.
  8. You should consider any tax consequences such as capital gains tax and there may be a need for particular advice from your accountant or a financial planner.

It can be difficult to navigate and consider the matters above on your own and how they apply to you and your family. As such, it is important to get the right advice when negotiating a Property Settlement Agreement.  We recommend obtaining advice from an experienced and knowledgeable lawyer that specialises in Family Law matters. [...]  READ MORE →

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Property Settlement Agreement

The law encourages parties to negotiate and reach an amicable agreement as to the division of property following separation. If you have come to a Property Settlement Agreement with your former partner then you may wish to formalise this by entering into a binding property settlement agreement.

Sometimes parties come to an agreement without having properly considered the nature and effect of their agreement. When negotiating a Property Settlement Agreement some things to keep in mind include the following: [...]  READ MORE →

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Property Settlement Agreement – Courts Considerations

The Family Law Act 1975 outlines general principles that the court will consider when determining property disputes and the consideration of a  property settlement agreement.

For the breakdown of a marriage this is highlighted in Sections 79(4) and 75(2); and for the breakdown of a de facto relationship this is evident in Sections 90SM(4) and 90SF(3). The principles outlined for both married and de facto relationship breakdown are identical and concern:

  • What assets and debts you have and their worth
  • Direct financial contributions to the relationship (e.g. wage and salary earning)
  • Indirect financial contributions to the relationship (e.g. gifts and inheritance from family)
  • Non-financial contributions to the relationship (e.g. caring for children and homemaking)
  • Future requirements (e.g. considering age, health, financial resources, care of children and ability to earn)

The assessment of assets and debts and hence the division of property is thus highly unique to your particular circumstance. For such reason you require a specialist family law team such as that at Matthews Folbigg, to give your matter the specific attention that it requires to best assist you in reaching your desired goals in your property settlement agreement. [...]  READ MORE →

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Divorces and Property Settlement Agreement

In the recent case of Fontana v Fontana (2016) it was determined that a husbands appeal against property settlement agreement orders were permitted as they failed to adequately consider his state of health as outlined under s 75(2).

In establishing the property orders, the trial judge ordered that the couple’s property be split with 43.6% to the husband and 56.4% to the wife creating a difference in assets received by the parties of $155, 400. The husband’s appeal to this outcome was founded on his health condition whereby he was subject to renal failure and required multiple dialysis treatments a week while he awaits a transplant. Consequently, the husbands appeal was successful as the trial judge failed to locate a finding in relation to life expectancy and thus the orders made by the trial judge were set aside. [...]  READ MORE →

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Divorce Lawyer Help: My partner gambled away our mortgage repayments

Under the Australian no-fault based divorce system, a  divorce lawyer  may tell you that a former spouse or partner that expends joint monies on gambling or extravagant personal spending is not sufficient reason for a property adjustment in the other partner’s favour. However, on a case-by-case approach, a divorce lawyer can ask that the Courts may consider adjusting your property settlements when there is substantial wastage by one party.

In Padfield v Padgett [2015], Baker J found two kinds of conduct were relevant when considering adjustment to property under the Family Law Act 1975: [...]  READ MORE →

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Property Settlement Agreement – What Exactly Counts as Property?

Although many separating couples have some idea as to what constitutes ‘property’, there is often some confusion when it comes to determining what exactly is ‘property of the relationship’ and thus subject to be examined in the property settlement agreement. A brief overview of what is considered ‘property of the relationship’  during property settlement agreement negotiations include

Assets owned either jointly or in separate names by yourself and your former spouse, for instance:

  • Family home
  • Holiday house
  • Investment Properties
  • Any cars or other vehicles
  • Household appliances, furniture and other chattels
  • Personal belongings (e.g. jewellery)

Assets under the control of yourself or your former spouse, including:

  • Any businesses
  • Superannuation
  • Shares in family businesses
  • Investment properties in family trusts

Any joint or separately held liabilities, such as:

  • Mortgages
  • Credit cards

Our specialist family law team can assist and advise in your property settlement. Our Accredited Family Law Specialists are able to look at the best outcome for you and give you advice as to your property, legal rights and entitlements. [...]  READ MORE →

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How to divide assets and debts in a property settlement agreement

It is often misperceived that there is a specific formula used when determining how to divide property. However, this is far from the case and is the primary reason for which it is advised that you seek legal advice prior to commencing proceedings. Legal assistance will enable you to grasp a comprehensive understanding of your rights and obligations under the law and put yourself in the best position to achieve your desired outcomes. It is impossible to determine exactly what the judicial officer will order, although it must be kept in mind that the decision is determined based on evidence presented and thus what is ‘just and equitable’ in relation to the individual facts of the matter (For a more detailed explanation of what is just and equitable see also article post – What does ‘Just and Equitable’ actually mean?). [...]  READ MORE →