The best lawyer at Southport, Gold Coast - Hunter Solicitors
Phone: 07 5532 5222
Level 1, 113 Scarborough Street,
SOUTHPORT, QLD 4215
by Keith Hunter LL.B. (Principal, Hunter Solicitors)
When a marriage or de facto relationship breaks down, two main issues need to be sorted out. Firstly there is the issue regarding any children of the relationship, which we will cover in more detail under a separate article. The other issue relates to property. It’s important to remember that both issues can be dealt with as soon as separation occurs. The only time delay is in seeking the actual divorce. When there are non-reconcilable circumstances the parties must wait twelve months from the date of separation, before applying for a divorce.
By entering into a Binding Financial Agreement the parties can sort out once and for all, their rights to property accumulated before and during the marriage or relationship. Values of all assets are obtained including bank accounts, superannuation, real estate, and shares, and then consideration is given to each party’s needs and the contributions they made during the relationship, to establish fair distribution of the asset pool. If for example the husband has a bad back which will prevent him from working in the future, that disadvantage will go in the husband’s favour. Other disadvantages such as a lack of education or working capacity are taken into account in favour of the disadvantaged party.
Contributions made by each party to the marriage, or de facto relationship, is another main issue. If one party came into the relationship with more assets then that factor would be taken into account in favour of that party.
The assets form a pretend ‘matrimonial pool’ and are liquidated as if they were cash, with the percentage entitlement of each party then being calculated. If the relationship has been a long term one, that is fifteen years or more, each party starts with a 50:50 split which is then varied up or down depending on the party’s needs and the contribution made.
Once the entitlements are established it’s very important that the parties sign a Binding Financial Agreement. This means that the agreements reached are binding on each party allowing them to move forward and get on with their new lives, without the fear of the other party coming back at a later stage saying that not enough was apportioned and they can now try and claim more.
The lawyers for each party also sign off on the Agreement indicating that the settlement reached is appropriate and that all relevant considerations have been made.
To be valid a Binding Financial Agreement must be precise, accurate and made in accordance with the amendments to the Family Law Act. Therefore it is very important that you consult a lawyer. Trying to sort matters out yourself may seem a good idea at the time, but taking short cuts will simply put you at risk of not receiving your full entitlements, or may leave a cloud of uncertainty with the other party possibly coming back later to claim against you.
Property issues must be sorted out within twelve months of the date when the divorce becomes absolute otherwise you may lose your rights. In some instances an extension of time may be sought, however there must be very good grounds on which to base an application for an extension of time.
Speak with us early, to ensure you are fully aware of your rights so that the best result can be achieved.
© Hunter Solicitors, 2010