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In financial separation matters, each party has a duty of disclosure which requires all parties to give full disclosure of all documents relevant to the case. This includes information and documents that the other party does not know about. Disclosure documents include, for example, bank statements, tax returns, superannuation statements, share statements, payslips and the like. This includes disclosure of assets you have acquired post separation. Disclosure is a compulsory part of the process. To learn more about your duty of disclosure click the link. Beware of failure to disclosure an asset or liability. It could derail your consent order. To learn more about what can happen if you fail to disclose your assets or liabilities, click the link.

Check out our page Book a Reduced Rate Consultation which sets out exactly what you can expect and the questions you will be asked.

No. There is no presumption that the assets are divided equally between you and your former partner. The way assets are divided to achieve an ‘equitable’ settlement for both parties differs depending on the circumstances of each case. To learn more about how to the court works out how to divide your assets post separation, click the link and check out our helpful free information video How a court determines your property settlement entitlements.

The simple answer is no. The Court is required to consider all property of the parties which exists at the time of the hearing, regardless of when those assets are acquired and all such property may be the subject of an order by the court. This is why it is important to finalise your financial matters with your ex partner as soon as possible after separation, to avoid assets you have purchased after separation being the subject of an application for property settlement by your ex-partner. Click the link to find out more.

Two parties are not expected to go into a state of suspended economic animation (i.e. you don’t have to press pause on your life) following separation. The Family Court considers all assets, liabilities and superannuation that exists at the time of the Hearing, no matter when acquired. Post separation debt that is acquired for appropriate purposes will be included in the property pool, for example, where it is debt acquired to move out and re-establish yourself. However, if you have unnecessarily increased debt post separation this may be considered wastage, it might be quarantined and in those circumstances it may not be taken into account.

If you don’t sort out your asset division promptly after separation you may find that your ex starts selling or transferring assets without your consent. Once assets are gone, you can rarely claw them back, particularly if the money has been spent or if the asset has been transferred to a bona fide purchaser.

We often have clients come to us seeking urgent legal advice about these types of issues, stating for example “my ex has withdrawn $50,000 from the mortgage redraw facility” or “my ex has emptied $100,000 out of the joint account” or “my ex has our house on the market, I did not agree.”

Click the link to find out what you can do to preserve your property settlement entitlements post separation, or if assets have been already been sold, what relief you can seek from the court.

The Bank doesn’t care who is living in the house or who is paying the mortgage, they only care that it is being paid. If the mortgage is not paid the bank will come after both of you for payment and it may affect your respective credit ratings if the mortgage is not paid for a period of time. Therefore, we suggest you reach an agreement promptly after separation as to who is paying the mortgage, rates and outlays early on. If neither party can afford to pay the mortgage on their own or split 50/50, it is in the interests of both parties to apply to the bank to put a hardship (interest only) arrangement in place, for a period of 3 to 6 months, pending a property settlement agreement being reached. Otherwise, it may be that you agree to put the house on the market for sale, to minimise any financial losses incurred.

A de facto couple has the same rights as a married couple. They may make a property settlement claim against the other when they separate. If you want to learn more about the factors the court looks at in determining whether you are in a de facto relationship, check out our article Am I in a De Facto Relationship. If you are wanting to protect your assets whilst you are in a de facto relationship or marriage, click the link and read our article on 10 tips to protect your assets. If you have separated and want to protect your assets, check out our 6 top tips to protect your assets post separation.

Disputes often arise in a family law context over the terms of a family loan when a relationship ends. Naturally, upon the breakdown of a relationship, you will maintain that the advance provided by your parents is a loan to be repaid from the asset pool whereas your former partner may maintain that the advance was a gift and that it is not repayable. Whether it is a loan or a gift will depend on the specific circumstances of the case. Click the link to learn the four main criteria the court considers in determining whether the money advanced by your parents is a loan or a gift. If its a loan, then it will need to be paid back out of the property pool or accounted for by the party retaining the loan receiving more of the other assets. If the funds are deemed a gift, it may have an impact on the assessment of the contributions of the parties to the property pool.

Generally no. Most superannuation benefits cannot be paid until the beneficiary (i.e. you) retires. This means you cannot access the funds straight away. Rather the splittable amount is ‘rolled over’ to a new superannuation fund of your choice. There are exceptions to this. For example, if the superannuation fund of the person whose superannuation is being split is already in payment phase, it can generally be accessed as cash and transferred to you.

Superannuation splitting is not possible for all superannuation interests. Each fund has their own legal requirements for a superannuation split and some types of superannuation interests are unsplittable. For example, most funds will refuse to split a superannuation fund if the fund contains less than $5,000. Some SMSF’s are also difficult to split because doing so would have financial consequences, in particular, it may trigger the payment of tax. Even if those tax consequences are not immediate, it is still an important consideration for you in dividing an SMSF as to whether an asset is pregnant with capital gains tax. You should obtain financial advice as to the impact and tax consequences associated with splitting an SMSF, prior to any agreement being reached.

Whilst you are not required by law to have your superannuation valued, it is advisable to obtain a valuation to make sure that it is attributed an accurate value. A failure to have your super or the other party’s super valued may result in an outcome that is not just and equitable to both of you.

No. But there are good reasons to have a Brisbane Family & Divorce Lawyer document your financial agreement regarding the division of your assets post separation. Firstly, it makes your agreement legally enforceable. Secondly, it protects you in the future from a claim by the other party over your assets acquired post separation. Thirdly, by doing a consent order or a binding financial agreement, any transfer of property pursuant to that agreement is exempt from stamp duty. Click the links to find out more about the substantial benefits of doing a Consent Order versus a Binding Financial Agreement. Also be sure to check out our helpful Family Law Information Video for a quick summary of the pros and cons of each.

No. But there are good reasons to document your agreement with respect to the care and welfare of your children by way of either a Parenting Plan or a Consent Order. Firstly, it gives you certainty about the future living arrangements of your children and other important issues to do with the care and welfare of your children, by providing creating a solid plan that is intended by both parties to be followed in future. In most circumstances, this assists in reducing conflict between you and your former partner. Even if you are amicable we recommend documenting your agreement. Things change, people change and if you don’t document your agreement in a legally binding way, by way of consent orders, you might find the other party trying to renege from it in future. There are however times where a Parenting Plan might be more appropriate in your situation if circumstances are changing.

No matter how you choose to document your agreement, do it sooner rather than later, while you are amicable with one another, to create a workable plan that you both intend to follow and to protect your right to spend time with your children in future. Secondly, it creates stability and routine for the children which is important for their emotional wellbeing. For more information on the benefits of doing a Consent Order versus a Parenting Plan, click the link.

Yes. A Binding Financial Agreement can be overturned where it is entered into without the other party having independent legal advice, where there was duress or non-disclosure or where circumstances have changed. Binding Financial Agreements (particularly pre-nubs) are fraught with difficulty and we do not recommend them in 9/10 cases. To find out more about whether a BFA is right for you, click the link.

When there is a family dispute in relation to a child’s living arrangements, the child’s views is but one of 16 factors in determining what orders are in a child’s best interests. If someone has given you a specific age that a child gets to decide where they live, they are wrong as there is no black and white answer to this question and it depends on the specific circumstances of the case. Check out our family law information video for a summary of our advice in relation to when a child can decide where they live.

The overarching factor the Court considers when determining what time a child should spend with both parents, is what is in the best interests of the children. The best interests of the children are determined primarily based on the children’s right to have a meaningful relationship with both parents, balanced against the children’s right to be protected from physical, psychological and emotional harm and neglect. This includes the child’s right to be protected from exposure to domestic violence as the evidence of experts is clear that this can have significant negative impacts on a child’s psychological wellbeing. If a parent commits domestic violence against the other parent, it may have an impact on the orders that are in the best interests of the children.

The presence of domestic violence in a relationship is not an automatic bar to a child spending time with a parent. Most of the time the risk of exposure by a child to domestic violence can be mitigated by having changeover between the two parents occur in a manner which ensures the parents have no direct contact with one another. However, in more serious cases, a court may determine that it is in the best interests of a child to spend supervised (or even no time) with a parent. Check out our article on When is supervised time ordered for more information. Every case is different and you should obtain advice from an experienced Brisbane Family & Divorce Lawyer on your specific circumstances.

Evidence of domestic violence during a relationship does not commonly influence the outcome of a property settlement. However, in some rare circumstances domestic violence can be relevant to deciding the value of the contributions of a party who was a victim of domestic violence where the course of conduct has had a significant adverse impact on a party’s contributions to a marriage / it has made that party’s contributions significantly more arduous. Read our article on Is Domestic Violence relevant to a property settlement for more information on this topic.