Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.
Oftentimes, particularly in circumstances where parties to a separation are amicable and consider that they “get along well”, spouses divide their assets according to a personal agreement – that is, an agreement negotiated personally between the parties without the use of lawyers or the Australian courts.
Such an arrangement is not legally binging, and until an agreement is documented in one of the approved manners, the agreement is considered to be an informal agreement.
One of the most significant consequences of not formalising your property settlement is the possibility that your former spouse is able to make an application for a property settlement in the future – one, two or even several years later. Being required to undertake a settlement years after your separation can have detrimental impacts on your financial and mental wellbeing and makes it difficult to plan your personal affairs. This is particularly so when as far as you knew, the matter was dealt with and is in the past.
It is important, and a principal consideration of the Australian courts, that parties finalise the financial aspects of their relationship so that they can get on with their lives.
HOW DO I FORMALISE A PROPERTY SETTLEMENT?
Australian family law affords former spouses (or parties to a de facto relationship) two ways in which they can formally finalise a property settlement. These are:
1. Making an application to the court for consent orders; or
2. Entering into a binding financial agreement (‘BFA’) (also colloquially known as a ‘pre-nup’).
To reiterate, an agreement is not legally binding unless and until it is is documented in one of these manners.
1. CONSENT ORDERS
Parties to a separation that have reached agreement about their property settlement are able to apply to the Family Court of Australia for orders to formalise the agreement so that it is legally binding. This application documents and details:
When considering an application for consent orders in respect of a property settlement, the Family Court must be satisfied that the orders proposed are just and equitable.
Although the parties are not required to obtain legal advice in relation to an application for orders, it is highly advisable that you do so, as the documents required are technical in nature, and the consequences of an agreement not being documented correctly can be costly and time consuming.
2. BINDING FINANCIAL AGREEMENTS
Parties to a marriage or de facto relationship can enter into a binding legal agreement (essentially a contract) that details the financial arrangements should their marriage or de facto relationship break down.
A binding financial agreement can be entered into:
A binding financial agreement is capable of covering:
Unlike an application for consent orders, in order for a financial agreement to be binding, both parties must seek independent legal advice as to the effect of the agreement on the rights of either party and the advantages and disadvantages thereof. Additionally, and as distinct from an application for consent orders, a binding financial agreement is not required to be deemed as just and equitable by the Australian courts.
OTHER IMPORTANT CONSIDERATIONS
You are not required to be divorced to formalise your property arrangements – in Australia, divorce is a largely administrative process and is distinct from property settlement matters.
You should also consider that when you are divorced, you have twelve months from the date that the divorce is granted to bring an application for a property settlement to the court. After this time, ‘leave’ (i.e. permission) from the courts to apply for property orders may not be granted, or may nevertheless be costly and time consuming to pursue. De facto couples have two years from the date of separation in which to apply to the court for property orders.
WHERE TO FROM HERE?
Our accredited family law specialists are available to assist in all matters pertaining to your property settlement and can advise as to the method that is most suited to your particular circumstances. If you would like to speak to one of our family law specialists about any of your family law matters, please contact us on (03) 9804 7991 or email firstname.lastname@example.org to arrange a free telephone consultation.
The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.
The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.
The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT
community throughout the world and the end to rules that unfairly discriminate against such individuals and, in
many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT
people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of
some members for the benefit of the IAFL as a whole and the LGBT community.
The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and
expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are
The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly
donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46
jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your
jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’
Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.
In the recent Family Court case of Anaya & Anaya  FCCA 1048, the principle in the long established case of Kowaliw and Kowaliw was re-affirmed that:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
In Anaya, the husband argued that investment funds (including an inheritance of $1,000,000) ‘lost’ by the wife should be ‘added back’ to the asset pool and treated as an advance on her property settlement. The wife argued that the losses were a matter to be taken into account generally and to have them ‘added back’ to the asset pool would likely result in hardship to her.
His Honour held that at the time the wife decided to enter into the high risk investment she was likely to have been depressed and angry at the husband about their separation but that her decision to do so was reckless and fell within the second category of Kowaliw. The wife’s awareness was exacerbated by the timing of her decisions – after Family Court proceedings had commenced and she had legal representation.
I often have clients ask me to seek redress for losses ‘caused’ by their former partner, for example, the reduced value of their share portfolio or investment in a now worthless time-share resort. For the majority, my answer is no, that these losses were incurred in the course of the marriage but for some however, the answer is ‘yes’, for example, money lost due to gambling.
It is important that each significant financial ‘win’ and ‘loss’ experienced during the marriage is objectively assessed in the context of its surrounding circumstances. An emotional assessment may be misguided and result in unrealistic expectations by the aggrieved client.
I am available to assist with this task – by offering an objective and realistic assessment of your client’s complex property settlements.
Please contact me on email@example.com or 9804 7991 if you would like to discuss your client’s situation.
Or have your client contact me to arrange a free initial 15 minute telephone consultation.
Many married Australian’s own properties in the country and or overseas. What happens to these properties in the unfortunate event of divorce?
A recent verdict by the Full Court of the Family Court of Australia in Anderson & McIntosh (2013) FLC 93-568 case showed.
The Anderson & McIntosh Case
The couple involved in the case, married in Australia in 1988. They shifted base to another country in 2006 and then separated in 2009. Finally getting divorced overseas in December 2010. A decree from a foreign country relating to the properties was issued. There were no Orders sought for the couple’s properties in Australia.
The parties reached an agreement on the settlement of the properties in the foreign land, which received approval by the Court in that country. During the same time, a divorce decree was issued. The foreign courts ruling did not deal with the couple’s properties in Australia.
The wife made an application to an Australian court in relation to the property settlement 12 months after the divorce. The Husband sought to have her application dismissed citing the reason that it had been more than 12 months since the divorce and that the S 44(3) of the Act necessitated a Leave of Court for instituting court proceedings, with respect to the settlement of properties in Australia.
The Husband’s plea was dismissed and so he made an appeal to the Full Court, which was also dismissed.
Overseas Divorce not a “Divorce Order”
The following are the key points from the Full Court verdict in the Anderson & McIntosh case:
Options to Reduce Overseas Divorce Impact
The following options could have been explored by the Husband in the above case to reduce the impact of the overseas divorce:
If you are to undertake getting divorced overseas, it is critical to understand the legalities surrounding property settlement in that country and any country you own properties.
A mutually agreeable decision can be reached only when all facts are available. The assistance of legal experts in such cases becomes invaluable.
Get in touch with the legal experts at Mathews Family Law & Mediation. We are one of Melbourne’s leading law firm with years of experience and a track record of delivering successful outcomes in divorce proceedings, property settlement, child support, spousal maintenance, mediation and a range of other family law issues.
Click here to request a free initial consultation or call (03) 9804 7991 now.
The importance of family law settlement negotiations cannot be overstated.
In a recent Family Court decision, the judge made a costs order against the wife – that she pay the husband $30,000!
Because, in the judge’s opinion, the wife had let her anger and distress ‘drive the litigation’ and she had failed to make a ‘meaningful attempt’ to negotiate a settlement, including aggressively rejecting the husband’s settlement offer which ended up being more than the judge awarded her.
So, the wife’s poor attitude to settlement resulted in:
1. A lesser share of the asset pool; and
2. A costs order.
I wonder how she’s feeling now – even more angry and distressed?
The moral of the story – negotiate, negotiate, negotiate AND settle, settle, settle.
Vanessa Mathews is an accredited family lawyer and mediator.
If you want to reach a negotiated settlement ASAP, contact Vanessa on 03 9804 7991 or firstname.lastname@example.org
A CURLY CASE FOR THE COMMISSIONER OF TAXATION
CAO & TRONG AND ANOR  FAMILY COURT OF AUSTRALIA
There is no escaping the Family Court and the Commissioner …
The wife filed an application for a final property settlement, including an order that:
1. The husband indemnify her against ‘against any liability present or contingent including tax … in respect of E Pty Ltd’; and
2. The husband be responsible ‘for all income tax assessed on income received or deemed to have been received by the husband’.
In the period 2005 -2012 the husband incurred a tax liability of $5,519,200 (unpaid).
The Commissioner of Taxation sought leave to intervene in the property settlement proceedings and an order that the court first make provision for the payment of taxation liabilities to the Commissioner prior to any property distribution to the parties.
Before the matter could be determined by the court, the parties effectively withdrew their respective applications for final property settlement orders.
The wife advised the Commissioner that there was therefore now no basis for it to intervene.
The Commissioner was successful in its application for an order that the court does have the jurisdiction and power to determine an claim against a creditor pursuant to section 79 property settlement proceedings – even if the parties have withdrawn their applications.
The case was run by the Commissioner of Taxation as a ‘test case’ and confirmed that even when the parties themselves no longer seek the assistance of the court to achieve a final property settlement, if the Commissioner has already intervened in those proceedings, the court has jurisdiction to make an final order in its favor – and the liabilities owed to it enforced as an order of the Family Court.
In other words – there’s no avoiding the Commissioner – no matter what agreement the parties themselves might ‘agree on’, there’s no way around their obligations to it.
I hope that the year is treating you well – even though it is flying by.
We continue to offer a free 15 minute telephone consultation to your clients in need of family law advice – they can call me on 9804 7991 or email email@example.com to book a time.
And remember, we’re always happy to help you out with your own ‘curly cases’.
Stay in touch,
Vanessa and the Team at Mathews Family Law & Mediation Specialists
You’ve Tried Everything – Is it Time for Family Court?
While many married or de facto couples terminating their relationship try to work things out amicably, it can be tough. Here’s this person you thought you’d spend the rest of your life with, and now you don’t even want to sit next to them at the same table. But it’s almost always best to avoid court, at least in the beginning. We recommend trying a number of alternatives, before going to Family Court:
Work it out on your own
Sit down and talk to each other. This can save both of you time and money. And being able to work things out at such a difficult time in your relationship bodes well for the future, demonstrating that despite the breakdown, you can work together for what’s best for everyone.
Family Dispute Resolution
Many couples start with family dispute resolution. Trained practitioners in the field of family disputes, with additional training in law, social work and psychology work with a separating couple to help them through the process. This is generally used when children are involved.
Mediation is led by a trained, objective person whose role is to help each of you define the issues at hand, manage the discussion and come up with solutions. The mediator is interested in resolving the problem in the best way possible for everyone involved. The mediator does not judge or make a final decision but will help you come to your own resolution.
Collaborative divorce is similar to mediation but each side also has a lawyer and often a social worker or counsellor and a financial advisor are involved. Together all sides work together to help both of you come up with a solution that works for everyone. Among the incentives to make this approach work: if negotiations fail, neither sides’ lawyer can represent them in court.
When is it time to throw in the towel and go to Family Court?
Sometimes though, Family Court may really be the right way to go. Here are some factors to consider when making the choice whether to continue (or start) alternative approaches or go to Family Court.
Imbalance of Power
If your partner is abusive or domineering or makes more money or controls the finances in the family, this may put you in a much weaker position if you are trying to work it out by yourselves. While some neutral third parties like a mediator have experience handling these types of people, you still might find yourself stuck and unable to move forward.
Your Partner has an Aggressive Lawyer
Even the most well-meaning of people can fall under the spell of a tough lawyer. If they are working towards “getting even” rather than being fair, it’s probably time to go to Family Court and let a judge decide.
Your Partner does not Communicate
Each side has to be willing to talk about the issues at hand, express their needs and wants and listen to the other side. You can’t really work out a problem with someone who refuses to show up to meetings or won’t express what they want or won’t agree to anything, If this describes your partner – repeatedly – it may be necessary to find a good lawyer and turn to the Family Court.
Vanessa Mathews and Kuppy Nambiar are accredited specialists Melbourne family lawyers Melbourne divorce lawyers who have the expertise and experience to provide you with the separation and divorce legal advice you are looking for.
Contact Mathews Family Law & Mediation Specialists, Accredited Family Law Specialist, Level 2, 599 Malvern Road, Toorak, Victoria, phone 9804 7991, firstname.lastname@example.org
Mathews Family Law: https://www.mathewsfamilylaw.com.au
Family Court of Australia: http://www.familycourt.gov.au
Federal Circuit Court of Australia: http://federalcircuitcourt.gov.au
Using Credit Cards after Separation and Divorce
There are a number of practical steps to take regarding your credit cards after you separate.
Inheritance – What Happens to Them In Divorce Property Settlement’s
An article written for accountants and financial advisors by Vanessa Mathews of Mathews Family Law & Mediation Specialists.
Your client has the good fortune to receive a ‘windfall’, such as an inheritance or a lotto Your client and their partner separate.
Will the windfall be included in the property settlement asset pool?
Your client will likely answer ‘No Way’!
From the court’s perspective, windfalls are not a special category of contributions and they must be:
The timing of the windfall will however be relevant as to how the windfall is ‘shared’:
The short answer is that the windfall is unlikely to be retained in full by your client.
I’ll leave it you to break the bad news to them.
Next Steps Before a Divorce Property Settlement
You and/or your client may benefit from discussing the circumstances of the inheritance or other windfall and divorce property settlement before taking any action such as distributing or disposing of the asset in a manner that may adversely impact against your client.
Vanessa Mathews and Kuppy Nambiar are family law specialists with the expertise and experience to advise you about your family law property settlement issues.
Please call Mathews Family Law & Mediation Specialists on 03 9804 7991 or email email@example.com to speak with Vanessa Mathews or Kuppy Nambiar.
Mathews Family Law – Dividing the Property: https://mathewsfamilylaw.com.au/divorce/divorce-videos/dividing-the-property-in-victoria/
Family Court of Australia: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home
Federal Circuit Court of Australia: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home
I recently had my first encounter with ‘Bitcoins’, a new and modern form of currency which, like savings, are included in the matrimonial asset pool.
‘Bitcoin’ is a form of digital currency.
‘Bitcoin’ can be used for payment of goods and services.
In this particular case, the value of the ‘bitcoins’ had significantly increased and was considered by the parties to have been an excellent investment. Much of the ‘bitcoin’ market is speculative, and the value of ‘bitcoins’ is therefore very much subject to fluctuation.
The ‘bitcoin’ investment was valued according to the current market value and included in the assets of the marriage to be divided between the parties.
Whether its ‘bitcoin’, an e-commerce business or an ‘app’ in the development phase, the team at Mathews Family Law & Mediation Specialists, Australia Divorce, is able to provide you with expert legal advice about your property settlement entitlements.