Four Important Facts You Need to Know About Settlement

Courtney Barton 1. What is a Property Settlement?

When a marriage or a de facto relationship ends, the parties should always finalise their financial ties with one another.  This may involve the transfer of ownership of real estate, cash, superannuation or other property from one party to another.  For example, if the matrimonial home is in joint names the parties may agree that the house be sold and the proceeds divided. Alternatively, the parties may agree that one party receives the house and makes a cash payment of some nature to the other party to ‘buy out’ their interest.

When you are separating, it is important to obtain legal advice from a Solicitor specialising in family law, in order to determine your entitlements.

2. How do I formalise our property settlement?

Any agreement reached between you and your former partner should always be formalised (recorded legally).

There are two ways of recording a property settlement agreement between two separated parties:

  1. A Consent Order; or a
  2. Binding Financial Agreement.

A Consent Order is an Order which both parties have agreed to and the Family Court approves before making the Order, to ensure it is just and equitable.

A Binding Financial Agreement is an agreement between parties which has not been scrutinised by a Court to ensure it is just and equitable however the parties must consult with a Solicitor to make the agreement valid.

You should talk to your Solicitor about which form of agreement is right for you.

3. Why is it important to formalise your property settlement?

There are several reasons:

  • A Consent Order & Binding Financial Agreement are legally binding. This means that if the other party does not comply with the agreement, you have recourse to the Court to enforce compliance of the agreement.
  •  It finalises your financial relationship with your former partner. This means that your former partner cannot make a further property settlement claim against you.

4. Why is it important to do your property settlement promptly after you separate?

If you do not finalise your property settlement promptly after separation, this means your financial ties with one another have not been severed and you leave yourself open to a property settlement claim being made against you in the future, subject to relevant time limitations.

The value of the asset pool is not the date of separation it is when you make an agreement or when a Judge determines your matter.

This means that if your super interest increases, or you acquire a new asset or you improve the value of an asset post separation, but prior to a property settlement, it forms part of the property pool to be split between you and your former partner.

You should not leave yourself open to your improved superannuation entitlements,  or assets acquired/improved by you post separation,  forming part of your  property settlement.

Alternatively, if your former partner sells an asset or wastes away funds in the property pool, post separation, and applies the income for his/her own benefit, the property pool is reduced therefore reducing your entitlements. This is because the Court cannot deal with assets that no longer exist.

The only caveat to the above is that the Court has discretion to take into account financial contributions of the parties or wastage of matrimonial assets post separation.

It  is in your interests to formalise your property settlement sooner rather than later so that you can re-establish your financial position without a potential property settlement application hanging over your head in the future depending on time limitations.

Stop using unfair business tactics

Business It is illegal to persuade or to use unfair business tactics to force a customer into signing an unreasonable contract.

It is important that when you are dealing with customers that could possibly be vulnerable*, that you must ensure that you don’t use their vulnerability as an advantage to your business and always act professionally and with a good conscience**.

*Vulnerable referring to:

  1. Those whom may have a disability;
  2. Don’t speak English well or English is their second language; or
  3. Are classed as low-income earners.

**Good conscience referring to:

  1. Giving customers enough time to read a contract
  2.  Providing questions and answers
  3. Providing advice
  4. Not pressuring the customer in to a contract or agreement
  5. Providing all the correct terms & conditions of the contract/agreement

Dividing property

shutterstock_150556397If your relationship breaks down, you may need to divide your property which includes yours assets (being things you own), liabilities (money you owe) and consider who gets what property.

Coming to an agreement about property is great, however seeking legal and financial advice is also recommended to ensure everything is settled. Most cases the law says it is favourable to resolve a dispute before having to go to court. If a decision cannot be made and the dispute cannot be resolved then you should seek assistance from family services.

We are here to help if you need assistance. Call our family lawyers today on 1300 STOLAW or visit our website stolaw.com.au

What is Debt?

Debt

Debt is when one person owes money to another person. You can fall into debt if you:

  • Borrow money to purchase goods or services
  • Purchase products or services on credit
  • Don’t pay your utility accounts in a timely manner
  • Have outstanding fees owed to doctors or medical services

Debt Disputes

Debt disputes arise when there are disagreements between parties regarding the fixed or agreed sum of money, the value can be up to and including $25,000. Some examples of debt disputes are as follows:

  • Money hasn’t been paid for the removal of overhanging branches
  • Outstanding accounts or invoices
  • Rental arrears
  • Cost of work or goods supplied already agreed upon
  • Borrow money and not repaying
  • Wages not being paid
  • IOUs
  • Dishonoured Cheques

Resolving the dispute

Sometimes you may find it hard to resolve the dispute on your own. However, do try contacting the other party whether it is face-to-face, via phone or write to them. If an agreement can be made make sure all parties sign the agreement and keep a copy for your records.

If you cannot come to an acceptable agreement then you can choose to do the following:

  • You may like to invite the other party to attend mediation whereby you can try and settle the dispute outside of court;
  • Apply to the Queensland Civil and Administrative Tribunal (QCAT), to resolve the dispute if mediation hasn’t been successful; or
  • Apply to the Magistrates court, however this may take time and can be costly