The Family Court is empowered to make any
order which it considers appropriate altering the interests
of either the husband or the wife in any property owned by
either or both of them. Set out below are some of the
matters that the Court will consider. It is not intended to
be exhaustive and you should understand that each case will
be determined on its merits and that every person
considering separation ought to seek professional guidance
from a solicitor who practises in the Family Law
jurisdiction.
The property which the Court considers is that which has
been brought into the marriage or acquired during the
marriage or after separation. The property brought into the
relationship by either party is treated somewhat differently
than that acquired during the relationship and the Court
usually gives credit or makes an allowance reflecting that
contribution. It does not really matter in whose name a
particular asset stands or whether the asset is held by a
company or trust. If the asset is in the effective control
of one party or the other it will be taken into account by
the Court.
Property comprises all assets such as houses, land, shares,
money in the bank, furniture, motor vehicles, insurance
policies and the like. A superannuation entitlement is not
technically property but can be treated like property and
can be split between the parties. Both parties are obliged
to be totally frank in making disclosure of their assets.
In deciding what Order to make the Court takes into account
numerous factors which include:
- The direct or indirect financial contribution made by
either party towards the acquisition, conservation or
improvement of an asset. An example would be coming into the
marriage with an interest in real estate..
- The contribution other than financial contribution made
directly by a party to the acquisition conservation or
improvement of an asset. For example, a party who paints the
house makes a non-financial contribution.
- The contribution made by a party to the welfare of the
family. This includes the role played by one or other
partners as the homemaker and parent.
- The effect of any proposed order on the earning capacity
of either party.
- A whole range of matters which are directed more to the
future needs of each party. Included here are issues such as
the state of health of each party, the question of whether
one or other party has an obligation to support a child of
the marriage and the ability of each party to obtain to
continue work.
- The Court will also consider the fairness and equity of
the proposed division of assets
An application for property settlement can be made
immediately following separation and it is not necessary to
wait until divorce. However, once a divorce has been
obtained the application for property must be made within
twelve months of the date of the decree absolute (a month
after the divorce hearing). If the application is not lodged
within that time a person must prove to a Court that there
are special circumstances which allow the application to be
made late.
Reaching agreement as to division of property
Generally speaking, when lawyers are consulted about
property settlement their initial aim is to have the parties
reach an agreement on the settlement without the need to
issue proceedings through the Court.
If that can be done there is a considerable saving in both
time and cost not to mention a significantly lower level of
stress for all concerned. If agreement is reached it can be
evidenced by Consent Orders or a Binding Financial Agreement
[include link to BFA page].
Consent Orders are obtained by a very straight forward
procedure which does not involve either party or their
solicitors actually attending Court. It is important that
the agreement is evidenced in writing, particularly where
the parties enter into a transfer of property as part of the
property settlement (such as where one transfers his or her
interest in the home to the other) as stamp duty liability
is waived.
Court proceedings
In the event that the parties are unable to reach an
agreement one or other of them will issue an application to
the Court and at that time also file a statement setting out
their financial circumstances.
Once the application has been issued by the Court, copies of
the documents are served on the other party who should then
file a response together with a statement of their financial
circumstances.
The parties are required to attend a Conciliation
Conference, which is an occasion when the Registrar and the
legal representatives assist the parties in making a
concerted effort to reach a settlement. If a settlement is
reached at that time often the details can be written out in
the form of Court Orders and the Registrar conducting the
conference will make the Orders then and there, finalising
the matter. Otherwise the Orders can be prepared and signed
over the ensuing days and forwarded to the Court.
If the conference is unsuccessful either at that time or at
a later date the Registrar will give directions for the
filing of material and other things required to be done to
prepare the matter for hearing and will list the matter for
hearing. The hearing is conducted before a Judge and each
party and his or her witnesses give evidence.
A lot of property matters are settled at or as a direct
result of the conciliation conference. Nonetheless, if the
parties can reach an agreement at any time the matter can
generally be finalised immediately.
Types of work we do:
1. Rural Settlements
Our Managing Director, Tony Philips has practiced for almost
25 years, until recently from our Toowoomba office. He has
been instrumental in effecting a number of high profile
rural property settlements throughout Queensland and New
South Wales. Since relocating to Brisbane in 2004, Tony
continues to deal with matrimonial settlements involving
rural property. We have extensive expertise in dealing in
disputes in the areas of:
• Beef cattle including feed lotting;
• Pork production;
• Sheep in both meat production and wool;
• Grain and fodder crops both irrigated and dry-land
farming;
• Small crops including organic farming;
• Cotton - both irrigated and dry-land.
as well as issues concerning water allocation entitlements.
2. Business Disputes
Our firm has also dealt with disputes involving a varied
range of businesses. Examples of some of the types of
businesses we have dealt with include:
• Accounting practices;
• Butchering;
• Car and truck dealerships;
• Cold storage business;
• Commercial fishing;
• Electrical contracting businesses;
• Electrical retailers;
• Engineering & mining businesses;
• Financial planning practices;
• Hardware businesses;
• Heavy machinery dealerships;
• Hire businesses;
• Insulation sales and installation;
• Legal practices;
• Manufacturing business;
• Meat processing;
• Medical practices;
• Panel beating;
• Retail businesses;
• Seafood wholesaling;
• Transport.
3. Complex Structures and Hidden Assets
We have had extensive experience in dealing with multiple
entity corporate structures and with the tracing and
valuation of hidden assets. In conjunction with forensic
accountants, we undertake a process of unraveling the
structures to quantify and value the extent of the interests
in entities.
WHERE TO NOW?
If you would like to speak with an expert to discuss your
family law issue, please call us on (07) 3007 9898 or send
us an email at
enquiry@murdochs.com.au