1. If we sell the house will I get half?

The Family Law Act sets out the matters that need to be taken into account when working out the legal equivalent of a “fair” division of property. However the Act doesn’t define a value or percentage split of assets that will in every case constitute a fair result. Indeed, the decided cases specifically state that 50/50 is not a starting point when considering how matrimonial property is to be divided.

A reason why property settlements are so difficult to achieve quickly is that what one individual may think of as being fair will probably not be considered fair at all by their partner. This is because what an individual thinks of as fair often depends on the weight they put on their own contribution to the relationship as compared to their view of the contribution made by their partner. Reconciling two quite different assessments of what is “fair” can be an exceedingly difficult task even for lawyers and Judges so early settlement of property matters is comparatively quite rare.

2. By property does that mean just real estate?

No. The definition of property is very broad and includes not only real estate but also investments, businesses, cars, furniture, jewelry, companies and trusts. All of these assets together make up the pool of property available for division when relationships end.

3. We are not married. How long do we have to live together as a couple before I can make a property settlement claim?

If you are in a de-facto relationship you can ask for a property settlement provided at least one of the following applies to you;-

a// You and your partner lived together for at least 2 years (this can include time interrupted by separations); or
b// You and your partner have a child together; or
c// You made such a significant contribution to your partner’s property that if a property settlement order was not made a serious injustice to you would result; or
d// You made such a significant contribution to the relationship as a homemaker or parent that if a property settlement order was not made a serious injustice to you would result; or
e// The relationship was registered under relevant state legislation. NOTE: At the present time there is no provision under Queensland law for the registration of de facto relationships but it is anticipated that it will become law at some future point in time.

4. How does the property settlement process work?

If the Court has to decide how to divide property, it will consider the following:-

a// The size and nature of the pool of assets and liabilities that is to be divided;
b// The respective contributions made by the parties to the accumulation of the assets or to the relationship generally. Financial contributions such as wages and inheritances are taken into account but so to are non-financial contributions such as the provision of property maintenance services. The performance of the breadwinner is important but so to is the role of homemaker and/or parent. Whether there are differences in the couples respective circumstances that should properly be taken into account e.g. whether one party is primarily responsible for the care of a child or whether one person is able to earn more than the other is another important consideration.
c// Are their differences in the couples respective circumstances that should be taken into account - e.g. - If the mother/father primarily responsible for the care of a child? Is one person able to earn than the other?
In what proportions and how a court divides assets depends on how these factors are balanced in each individual case. That is where we come in. We can help you, not only with understanding how much of the pie you will receive but also the most effective tool to care out your share. That might be collaborative law or mediation and sometimes it is by applying to the court.

5. Are the assets that I bring into the relationship quarantined from claim by my partner?

In the event of separation the assets you have in your name before you marry or start living together will become part of the asset pool available for claim by your spouse or partner. The only way to protect, or quarantine, those assets from a property settlement claim is through the use of a financial agreement.
If you are:

a// Married or living in a de facto relationship; or
b// Planning to marry or live together;
you can, by signing a financial agreement, protect your property from claim or clarify how that property will be spit if you separate.
Even if you currently have fewer assets than your partner, it may be useful to protect future property, such as an inheritance.
Financial agreements are available to couples in de facto relationships, including same sex couples and to married couples. In both instances agreements can be reached in anticipation of the couple moving in together or marrying.

6. I'm thinking of separating, can my wife/partner claim part of my superannuation?

A court would regard your superannuation as property. If you and your partner or spouse have had a long relationship it is most likely that they will be entitled to a share of your superannuation or a greater share in another asset to compensate for you retaining 100% of your superannuation.

7. Do we need to be divorced or wait 12 months to have a property settlement?

No. If you have separated you can immediately settle property division or start court action asking the court to make that decision for you.

8. If I inherit money or other assets from my family, will my spouse/partner be entitled to a share of what I inherit?

Any inheritance will become part of the property available for division between a couple if the relationship breaks down. However that does not mean that there is an automatic entitlement to share in that inheritance equally. The impact of an inheritance depends on a number of factors including, the dollar value of the inheritance, how long the relationship lasted after the inheritance was received, the length of the relationship overall and the value of the couple’s other property.

9. My parents have helped us out financially. Will that money go back to my parents?

If your parents have given money to you it will be absorbed into the property to be divided on separation. Although it will be taken into account in assessing your share of the property pool, it will not be quarantined from claim.
Even if you and your parents have signed a loan agreement, or even given a mortgage, a court may still treat it as if it were a gift unless there is a real expectation of payment.

10. Do we have to go to Court to decide who gets what?

Court is not a necessary step to work out a settlement. Many people work things out between themselves, others use Mediators or their lawyers you help them work our what they will each keep.

However there are significant benefits to properly documenting your settlement. Those benefits include:-

a// Stamp duty concessions on the transfer of property;
b// Capital gains tax rollovers; and
c// Most importantly, finality - so that you know that no further claims can be made against you

You can document your settlement arrangements in 2 ways:-

a// Consent orders; or
b// A binding financial agreemen
t.

Handy hints if you have separated or are considering that step

• Retain a lawyer who specialises in family law then follow that lawyer’s advice.
• Tell your lawyer everything and not just things that you think are in your favour.
• Be pragmatic. Don’t spend thousands of dollars in lawyer’s fees fighting over something worth hundreds of dollars.
• Resist the temptation to air your dirty laundry before the court. It will very rarely be relevant and is likely to leave a bad impression with the judge.
• Don’t expect the court to compensate you for what has occurred during your relationship. The court has to make a decision on how to divide property. The court cannot and will not redress past wrongs.
• Good litigation strategy may not be good life strategy. Everyone underestimates the financial and emotional expense of negotiations and litigation. Think long term and weigh the ultimate cost, financial and otherwise, of your actions.
• Don’t underestimate the guilt factor. If your partner left you try and reach an early resolution because the benevolence that comes with guilt will wear off.
• Everything you do, write, email and say, including things said in the strictest confidence to family and friends, can get back to your former partner and may become evidence in family law litigation. If you don’t want it to become part of the evidence, do not say it and most particularly do not write it.
• When planning to separate, take photocopies of bank account statements, superannuation details, business tax returns, balance sheets and other documents that will help your lawyer understand your financial position.
• Moving out of your home can have significant adverse consequences. Don’t move out without consulting your lawyer.
• If moving out, take with you all your official papers such as birth and marriage certificates, passports and tax returns. Also take your personal items, clothing, jewellery and those items that cannot be replaced such as family photographs and heirlooms.