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Divorce in Australia: Who Gets the House?

Divorce in Australia: Who Gets the House?

When a couple decides to separate or divorce, one of the first questions that needs to be answered is who gets the house. This can be a difficult question to answer, as there are many factors that need to be taken into account. In this blog post, we will discuss some of the things that need to be considered when deciding who gets the house after a divorce in Australia. We will also provide some advice on how to get through this process as smoothly as possible.

 

The first thing that you need to do is figure out what your goals are. Do you want to keep the house? Are you willing to sell it and split the proceeds? Or are you just looking for a fair split of assets? Once you know what your goals are, you can start to look at your options.

 

It can be a very difficult decision to make when it comes to who gets the home during a separation or divorce. It is even harder when children are involved and trying to maintain some level of stability for them. Some factors that come into play include: whether or not either party can afford the mortgage on their own, if there are any outstanding debts on the property, job security, and the age of the children. The bank must always approve one party taking over the mortgage. If the bank doesn’t allow it, generally the house must be sold. 

 

If you want to keep the house, there are a few things that you need to consider. First, you will need to be able to afford the mortgage on your own. This means that you will need to have a steady income and good credit. If you don’t meet these requirements, it may be difficult to get approved for a loan on your own. Additionally, if there are any outstanding debts on the property, you will be responsible for paying these off.

 

If you are willing to sell the house, you need to figure out what the fair market value of the property is. You can do this by hiring a real estate agent to do an appraisal (or better, two appraisals). However, the best is a formal valuation on the house and this is the most accurate way of determining the value of the property and is required in the event of a dispute over the value of the property. Once you know the fair market value, you can start negotiating with your ex-spouse about how to split the proceeds. If you can’t come to an agreement, you may need to go to court and have a judge determine how to divide the assets.

 

If you have children, it is important to try and maintain some stability for them. This may mean that you keep the house and allow your ex-spouse to live there with the children. Or, it may mean that you sell the house and split the proceeds so that each of you can buy a new home. Whatever you decide, it is important to keep the best interests of your children in mind.

 

The process of deciding who gets the house after a divorce can be difficult and emotional. However, it is important to remember that you need to figure out what is best for you and your family. If you are having trouble making a decision, it will be helpful to seek out the advice of a legal professional. They can help you understand your rights and options, and they can provide guidance on how to proceed. With their help, you can make the best decision for your family and move forward with your life.

 

Getting through a divorce can be difficult, but it’s important to remember that there is light at the end of the tunnel. By taking some time to figure out what your goals are and getting professional help, you can make sure that you get through this process as smoothly as possible. 

 

If you have any questions about divorce or property settlement in Australia, we encourage you to contact us. Our team of experienced solicitors can provide you with the advice and assistance you need to make sure that your interests are protected. Contact us today to schedule a consultation.

Post-Separation — Who Gets What?

Post-Separation — Who Gets What?

Separation and divorce are likely to be among the most challenging experiences you will ever face, both emotionally and financially. And, when it comes to dividing all that you and your ex-partner acquired together — potentially over many years — the challenges, stress and confusion only increase. There are important family and financial considerations to be made, and financial and parenting agreements to be formalised.

In even the most amicable of splits, it is crucial to obtain the services of an excellent family lawyer. If you’ve found yourself wondering, “What am I entitled to in a separation in Australia?”, we warmly invite you to make an appointment to talk with the caring and professional team at Strategic Lawyers Townsville.

How assets are divided in a divorce in Australia 

There is no definitive answer on how to split assets after separation. This is true for both married couples and de facto relationships. Under Australian law, each party is entitled to what is “fair”, “just”, or “equitable”. This ensures that neither party is given an unfair advantage or disadvantage in the property settlement, such as in the case of a parent having their ability to earn (and superannuation balance) reduced as a result of being the primary caregiver of any children of the relationship.

Property settlement and family law 

Property settlements (also known as financial agreements) are governed by the Family Law Act, and apply to both married and de facto relationships. Prior to making an application, applicants need to show that a genuine effort has been made to resolve the dispute. A lawyer needs to be engaged to negotiate how the property pool will be divided, draft binding Consent Orders, and obtain a court decree of consent.  

Although there is no specific formula for the calculation of property settlements and no guaranteed 50/50 or 60/40 split divorce in Australia, the courts have defined a framework to help achieve a fair and equitable division. When it comes to separation and divorce and who gets what in Australia, it generally amounts to the shared property pool, the contributions and needs of each party, and how to fairly implement the division as defined below:

  • Shared property pool — This is all of the assets and liabilities of you and your ex-partner. When it comes to the shared property pool, “personal” assets, such as superannuation, are also considered. This ensures a fair and equitable division of all assets.
  • Contributions — As well as financial contributions, non-financial contributions such as the care of children and homemaking contributions are considered.
  • Needs — Both your’s and your ex-partner’s current and future needs are considered. When it comes to financial division, the most common needs to take into account are your ability to earn (now and in the future), your age and health, and your child-caring responsibilities.
  • How to implement the division — Lastly, a just and equitable division needs to be determined, and a decision made on how the division will be implemented.

In court, it is ultimately up to the Judge, who has a wide discretion, to decide who gets what in the property settlement, and no two property settlements are ever the same.

Negotiating an out of court agreement    

It is not always necessary to attend court when finalising a property settlement. At Strategic Family Lawyers Townsville, we can negotiate both property and children’s matters outside of court on your behalf. These negotiations deal with the disputed issues, the law’s take on those issues, and proposals for settling the matter. Our negotiations are always professional and strategically focused — where possible, we believe in keeping your case out of the courts.

Agreement is usually undertaken via consent orders. Consent orders are binding agreements that are negotiated on your behalf by us. Consent orders save on both time and money spent in court, along with the stress that can come with protracted court battles. 

When negotiating out of court agreements, our highly skilled negotiators always stand by our mission to achieve life-changing outcomes for our clients. We demand high performance in all of our undertakings, and treat our clients as more than just a file number. As a leading family lawyer in Townsville, we are committed to understanding each of our clients’ stories and delivering superior service every time.

Custody of children in divorce settlements

The process of separation and divorce can be made even more challenging and emotional when there are children involved. There are, however, options available to you when it comes to sorting out the custody of your child or children. Coming to an agreement with your ex-partner over living arrangements will prevent the need to go to court. 

There are two ways to document any agreement made with your ex-partner — you can choose either a parenting plan or a consent order. There are pros and cons to both of these agreement options, and of course, your children’s best interests should be at the forefront of your decision making in this area. 

  • A Parenting Plan is a voluntary written agreement between you and your ex-partner and needs to be signed by both parties. It details all aspects of your child’s welfare, care, and development. A parenting plan allows room for flexibility and changes, but is not a legally binding document.
  • A Consent Order contains similar information to a Parenting Plan, and also needs to be signed by both parties. However, a consent order is a legally enforceable document, meaning that no changes can be made unless there has been a significant change to circumstances. And any contravention to the Order may result in penalties being imposed.

Contact Strategic Lawyers for your separation and divorce property settlement needs  

When it comes time to negotiate your post-separation property settlement, you’ll need a lawyer who has your best interests at heart. At Strategic Lawyers Townsville, you can count on us to get the results you need. Our team of highly experienced professionals are here to deliver a service that is tailored for you and your specific needs. Contact us to set up a meeting with our family lawyers in Townsville today.

There’s no need to google “family lawyer near me” — for your convenience, Strategic Lawyers also have locations in Charters Towers, Mackay, Cairns, Mission Beach, Mount Isa, Ingham, Ayr and Bowen.

Should I Make a Will and Why?

Should I Make a Will and Why?

Covid-19 has created anxious times for everyone and caused most people to reflect on life and what matters most to them. One thing that it has brought home to many of us is the fragility of life and that it can be wiped away at any age and when we least expect it. This has caused several people to question whether they need to update their will or consider making one.

This article explains why you should make a will (not just because of the COVID 19 pandemic) and what’s involved.

Should I make a will?

In a word, yes!

Preparing for your death is probably the last thing on your mind when you’re a nineteen-year-old but ultimately it’s just as important whether you’re 19 or 90.

Why?

Because, if you die without having made a will, all that you own will be shared out according to Queensland law.

In other words, you don’t get to have a say in who receives what.

Preparing your will may not be at the top of your ‘things to do’ list, but it does guarantee that your loved ones receive what you want them to, should or when the worst happens.

Even if you have made a will, you should ensure that it’s updated if and when your circumstances change.

Can anyone make a will?

A person needs to be 18 and above in order to make a will and to be compos mentis (of ‘sound mind’). That said, a married person who is younger than 18 is able to make a will.

 What should I put in my will?

Theoretically, you can say almost anything in a will. If you don’t have a large or complex estate, then typically you might just say something along the lines of “I leave everything to my wife and then to my children.”

Speaking of children, if you have kids below the age of 18, you might want to consider including a guardian clause.

Potentially, they could be handed to a family member or friend who either doesn’t want to take care of them or who may not bring them up in the way you want. Be sure to ask the proposed guardian if they are willing to take on the responsibility if you die when your children are still minors.

As well as listing the people you want to inherit your money or assets, there may be people that you expressly want to exclude from your will. Since you won’t be there to explain the exclusion, it might be an idea to include a short explanation in your will, even if it’s only to say that you fell out several years ago and haven’t spoken since.

What if I change my mind about something in my will, can I change it at a later date?

Yes, of course. Circumstances change, as we know, and when they do you can amend your will. Remember, your will applies from the date of your death, so you can change it at any time up until that point.

Can I make my own will?

Yes, you can make your own will by downloading a template, printing it, filling it out, and adding your signature to make it official. However, we don’t recommend you make a will without the assistance of a lawyer in Queensland. Even a simple will can be wrongly prepared.

This could mean your loved ones having to sort out the mess by applying to the Supreme Court in a process which can be lengthy and expensive. At this emotional time, it’s the last thing you’d want them to be worrying about.

In the worst-case scenario, your will may be declared invalid and your estate could be divided up as per intestacy rules, which could totally oppose your wishes.

How do I make a will?

Speak with the experts in our Wills and Estate Planning Department. Our friendly lawyers will talk you through every step of the process and ensure that a will is written that truly carries out your wishes.

Wills can be complicated and by using the services of an experienced legal professional, they can also offer advice on things like capital gains tax or whether a trust is required to protect minors or vulnerable people that may be beneficiaries. If you’re looking to make a will, then get in touch with Strategic Lawyers by calling 1314 LAW or book online today.