Information About Family Law

When a relationship comes to an end, there are tough decisions to make and various matters that need to be resolved. One common concern we hear is what happens to loans and mortgages, especially for couples who jointly own property.

Understanding the impact of these financial ties is crucial. In this article, we will delve into the details of what happens with loans and mortgages following a separation, so that you can make smart choices to protect your financial well-being.

Who Pays the Mortgage?

When a couple decides to part ways, the question of who should shoulder the mortgage payments often arises.

It’s important to understand that regardless of the circumstances of the breakup or where each person is living, if both names are on the mortgage agreement, both parties share the responsibility for the payments. Even if you’ve moved out and are paying for a new place to live, you must still ensure the mortgage is being paid. This financial obligation can create significant pressure, which is why you need to explore your options carefully.

Clear communication between ex-partners is paramount in navigating mortgage payments post-separation. Openly discussing how to handle financial responsibility can prevent missed payments, credit score damage, and potential legal issues. Whether it involves deciding who will live in the property, how payments will be made, or exploring other arrangements, maintaining a cooperative approach is vital. Shared responsibility can help ease the financial burden and ensure the mortgage remains on track while both parties transition to their new situations.

Who Gets What: Property Settlement and Division

Property settlement involves dividing assets and liabilities that were accumulated during the partnership. These assets encompass a wide range of items, including real estate, money, vehicles, superannuation funds, and even pets. This whole process aims to create a fair and equitable distribution of these resources, ensuring both parties are treated justly.

Keep in mind that the division of assets is rarely a simple 50/50 split. Instead, it’s influenced by various factors that reflect the unique circumstances of each relationship. Key considerations include the financial contributions made by each person, both in terms of income and investments.

Additionally, non-financial contributions, such as homemaking or childcare, also play a role in determining asset allocation. Earnings and earning capabilities, along with the number of dependent children and the existing agreements like prenuptial arrangements, further shape the division process.

The impact of these factors can be far-reaching. For example, if one partner has the primary responsibility for childcare following the separation, their ability to work might be hindered, potentially resulting in a larger share of assets to maintain financial stability. Other agreements or arrangements, such as who will live in the family home, can also influence the property settlement outcome.

Post-Separation Mortgage Management Options

After a separation, handling mortgages requires careful consideration. There are several options available to manage the mortgage, each catering to different scenarios and needs:

1. Joint Payment: Some couples choose to continue sharing mortgage payments, particularly if they can maintain a cooperative relationship. Both parties retain ownership of the property and may split generated income if the property is an investment.
2. Buyout: If one partner wishes to keep the property, they can buy out the other’s share. This involves refinancing the home loan to demonstrate the ability to manage payments independently.
3. Refinancing: Refinancing involves taking over the mortgage as a single owner. It requires proving financial capability to manage the loan on your own.
4. Selling: Selling the property and dividing the proceeds can provide a clean break from the mortgage. This is a common choice when neither party can manage the mortgage individually.
5. Alternative Arrangements: Couples might come up with unique agreements, such as both contributing to the mortgage or one partner paying a larger share if they’re living in the property.

The right option depends on your specific circumstances. Factors like financial capacity, housing needs, and willingness to cooperate with your ex-partner play a role. Seeking legal and financial advice is crucial to making informed decisions that align with your situation.

Legal Implications and Court Involvement

Legal decisions made during separation can significantly impact property ownership and mortgage obligations. Clear legal agreements, like a consent order, can outline who retains the property, who’s responsible for the mortgage, and how payments will be managed. These decisions provide clarity and prevent disputes down the line.

In situations where ex-partners can’t reach an agreement on mortgage matters, courts may step in to make decisions. Courts assess individual circumstances, financial capabilities, and other relevant factors to ensure a fair outcome. This ensures that property ownership and mortgage responsibilities are determined in line with legal standards.

Credit and Financial Risks

When mortgage payments are disrupted due to separation, it can negatively affect your credit score. Late or missed payments can lead to a decrease in your credit rating, impacting your ability to secure favourable loan terms in the future.

Additionally, consistent non-payment could ultimately lead to foreclosure, where the lender repossesses and sells the property. This not only results in losing your home but also negatively impacts your financial standing for years to come.

If you’re facing challenges in making mortgage payments, it’s crucial to proactively communicate with your lender. Many lenders have dedicated hardship teams that can assist by adjusting payment schedules or even temporarily pausing payments. Exploring these options can provide breathing room while you navigate the post-separation period.

What to Do to Secure Your Mortgage Future

If you are separating, it’s vital to keep your lender informed about your changing circumstances. Inform your lender of your plans and discuss how the mortgage will be managed moving forward. This transparency can help you explore available options and prevent unexpected issues.

Engaging a legal professional is essential during a separation, especially when it comes to property and family matters. An expert family lawyer can provide guidance on your rights, responsibilities, and the legal implications of various decisions. Having legal advice ensures you make informed choices aligned with your best interests.

Working closely with expert family lawyers, financial advisors, and other professionals can offer a helpful perspective on your situation. Their expertise helps you navigate the intricacies of property division and mortgage decisions.

Final Thoughts

In the course of separation and managing mortgages, the key is to act promptly, communicate openly, and make choices based on well-informed decisions. By addressing these matters early, you can pave the way for a smoother transition and financial stability.

While the end of a relationship may bring challenges, it also presents an opportunity for new beginnings.

Our team of expert family lawyers at Dorter Family Lawyers is here to provide the necessary expertise and support during this challenging time. With our guidance, you’re well on your way to making sound choices, protecting your rights, and securing a better future.

When a long-term relationship, like a marriage or de facto relationship ends, one of the most challenging aspects to work your way through is deciding how to divide your assets and property.

The division of assets is known as a property settlement and the family law system has provided people in Australia with a variety of options when it comes to working out how you will divide your assets.

While this flexibility can be beneficial, it can leave some people not knowing where to begin. The property settlement process involves considering a wide range of factors and a wide range of assets.

To help you understand property settlements in Australia, we’ve put together an overview of the property settlement process.

Keep reading to learn more.

What is a property settlement?

A property settlement is the process of dividing assets, property, and liabilities between separating or divorcing couples.

This legal process has been designed to ensure that there is a fair and equitable distribution of the property and liabilities when a relationship ends.

Property settlements can be reached through various means, including negotiation, mediation, and court proceedings. We will discuss these options in more detail later on, however, it’s important to note that the way a property settlement is resolved in one situation may differ from another as the outcome is dependent on many different factors.

Who is eligible for a property settlement?

In Australia, property settlements are available to both married couples and de facto couples (including same-sex couples) who have experienced a breakdown of their relationship.

Married couples who are seeking a divorce are eligible for a property settlement under the Family Law Act 1975. The entitlement to a property settlement applies to couples who are legally married under Australian law.

For de facto couples, couples that have lived together in a genuine domestic relationship for a certain period are also entitled to a property settlement. The exact criteria for being considered a de facto couple can vary slightly between different Australian states and territories, but generally, it involves factors such as the length of the relationship, whether the couple lived together, and whether they presented themselves as a couple to the public.

For more information on de facto relationships, read this article here.

What is included in a property settlement?

A property settlement can include many different assets and liabilities. Below, we’ve put together a list of some of the more common types of assets and liabilities, but keep in mind that this list is not exhaustive.

Assets

• Real estate, land, and property
• Trusts
• Companies
• Shares
• Investments
• Businesses
• Money
• Superannuation
• Inheritances
• Motor vehicles

Liabilities

• Mortgages
• Car loans
• Personal loans
• Credit Cards
• Other debts

It’s also important to be aware that the assets and liabilities included in a property settlement include those that are owned individually and jointly, as well as those that were acquired prior to, during and after the relationship has ended.

To be sure all of your assets have been considered in your property settlement, we recommend speaking to an experienced family lawyer.

How are assets divided in a property settlement?

As we mentioned above, the way a property settlement happens and the split of the assets will differ from case to case, however, there is a general 4-step process for property settlements in Australia.

Below is a summary of this process:

Step 1: Identify all assets and liabilities

This first step is very important in the property settlement process because to ensure a property settlement is just and equitable, all assets and liabilities must be identified.

We recommend creating a master list (balance sheet) of all assets and property owned, as well as any debts and liabilities of each person individually and those that are owned and owed together.

Failure to include all assets, whether intentional or not, could have serious consequences.

Step 2: Identify the contributions of all parties

Contributions incorporate a wide range of things, including financial and non-financial contributions, as well as direct and indirect contributions.

Contributions include care provided to children.

Seeking legal advice is beneficial during the property settlement process, particularly when it comes to working out the contributions of the parties as it can be easy to overlook some contributions.

Step 3: Work out the future needs of each party

Consideration of the ongoing and future needs of each party is important because there can be factors outside of an individual’s control that could limit their ability to be able to provide for themselves and dependents adequately in the future.

Things to consider at this point are parenting responsibilities and arrangements, the ability of each party to earn an income, and the heath and age of each party.

Step 4: Review the agreement

The final step of the process involves reviewing the proposed agreement to ensure that it is fair and all of the factors we’ve mentioned have been considered.

It’s a good idea to engage a family lawyer to review a property settlement agreement.

How can you work out a property settlement?

Like many other types of family law matters, people in Australia have a number of different options available to them when it comes to making a property settlement agreement.

These options include:

• Make a private agreement together

The family law system in Australia encourages people to resolve matters and disputes between themselves and outside of the Court system where possible.

In the instance of property settlements, former partners can reach an agreement together however they wish to do so. Once they reach an agreement it can be informal, or it can be formalised by applying to the Court for consent orders or creating a binding financial agreement.

Before formalising an agreement, we highly recommend speaking to a family lawyer to ensure the agreement is fair.

• Working with lawyers

If you’re unable to reach an agreement or you would prefer the support of an experienced family lawyer, you can engage our services to help you negotiate and craft property settlement agreements. We can advise you, as well as negotiate and represent you through any property settlement proceedings.

• Attend mediation

Another option former spouses can try is mediation. This is a type of dispute resolution where a third-party mediator, who is impartial, can facilitate discussions and negotiations for property settlements (and other family law matters).

Mediation is usually required before parties can apply to Court to resolve family law matters.

• Apply to the court for property settlement orders

Usually seen as a last resort, the former partners can apply to the Court for property settlement orders if they have exhausted all other options.

The Court will use the same general 4-step process discussed earlier to create property settlement orders.

This option ensures that a property settlement will occur, however, it takes away control of the situation from the parties which can result in orders that may not be favourable to you.

How long do you have to apply for property settlement orders?

There are strict time limits for applying to the Court for property settlement orders. For couples who were married, an application for property settlement orders must be made within 12 months after the date the divorce order is in effect. De facto couples have 24 months from the date of separation to apply for property settlement orders.

While this may seem like a long period of time, it’s important to note that applying for property settlement orders cannot occur unless all other avenues have been explored, including mediation. So, it’s important to get moving on your property settlement sooner rather than later in case you do need to apply to the Court.

If you do miss the time limit for making an application for property settlement orders, it could still be possible to apply for them. You will first need to apply to court for leave(permission) to be able to apply for the property settlement orders. The Court may grant leave, however, it is at their discretion and usually only occurs in exceptional circumstances, such as when a person is likely to experience hardship if the application cannot progress.

Working with a family lawyer in this situation is also highly recommended as they can provide guidance throughout your various applications.

Is there a way to protect assets?

An agreement such as a prenuptial agreement, formally known as a binding financial agreement (BFA) is an option parties have to try to protect their assets from division in a property settlement if the relationship ends.

A prenup or BFA can outline how assets are to be treated in the event of a separation or divorce and they can be customised to deal with a wide range of assets and matters, or they could be specific to one or two items.

These agreements are generally enforceable and legally binding, as long as the agreement has been made lawfully. The Court could set aside the agreement if certain conditions have not been met, such as the agreement was made under duress or a party didn’t receive independent legal advice.

If you’re concerned about protecting your assets, we highly recommend speaking to a family lawyer to understand all of your options.

Do you need a lawyer to work out a property settlement in Australia?

No, like most family law matters, you don’t have to use the services of a lawyer in order to come to a property settlement agreement.

However, while it is not mandatory, working with a lawyer has benefits. For example, a family lawyer can help you to understand all of the options available to you, they can help to know where you stand and the requirements of you, as well as drafting and reviewing agreements and negotiating on your behalf.

Are you looking for a property settlement lawyer in Australia?

Whether you’re considering separation, you’re already working on a property settlement, or you’ve hit an obstacle in your separation process, we’re here to help you.

We have an experienced team of family lawyers who can help you understand all of your options and resolve your disputes in a timely and effective manner.

You can discuss your situation with us in a no obligation consultation. Book online here or call us on +61 2 9929 8840.  

It may come as a surprise that bankruptcy issues can be intertwined in your property settlement dispute arising out of the breakdown of your marriage or de facto relationship. This is because section 35 of the Bankruptcy Act 1966 (Cth) (“BA Act”) confers jurisdiction in bankruptcy on the Federal Circuit and Family Court of Australia.

You are considered bankrupt if a sequestration order has been made against your estate or as a result of a debtor’s petition. A bankruptcy trustee is the person who administers the bankrupt person’s estate, the bankrupt’s property having vested immediately in the trustee.

The bankruptcy trustee is required to:

1. Sell all of the vested property and distribute the proceeds amongst creditors (being the person(s) to whom money is owed) and return any surplus to the bankrupt; or
2. Sell enough property to pay the creditors debt.

Part VIIIAA of the Family Law Act 1975 (Cth) (“the Act”) provides protection for creditors of parties to a marriage or de facto relationship. As a result, a bankruptcy trustee has the ability to partake in property settlement proceedings ‘as a respondent standing in the shoes of a bankrupt’.[1]

If I am bankrupt, can I commence family law proceedings against my former spouse?

If you are declared bankrupt, you still have the right to commence property settlement proceedings against your former spouse. However, you must keep in mind that the bankruptcy trustee has the right to be joined as a party to the proceedings. This means that whether you commence proceedings as a bankrupt, or you become bankrupt in the midst of your property settlement proceedings, you have an obligation to notify the Court, all other parties, and the bankruptcy trustee.

Notice to the Trustee

Once notice has been given, the bankruptcy trustee may file an application to become a party to the proceedings. If this occurs, pursuant to section 79 (12) of the Act, the bankrupt party is not permitted to make any further submission to the court in relation to any property vested with the bankrupt without leave (permission) of the court. The Court will only grant leave if exceptional circumstances apply.

What happens if I am declared bankrupt after I commence property settlement proceedings?

If you are declared bankrupt while property proceedings are on foot, the proceedings will be stayed in accordance with section 60 of the BA Act until the bankruptcy trustee elects to continue the proceedings. If no election is made by the bankruptcy trustee, the non-bankrupt partner may be able to continue the proceedings or seek to proceed on an undefended basis.

Standing of the bankrupt party

In the matter of Warin & Warin (No 4) [2022] FedCFamC1F 160, the bankrupt party had no standing in relation to any of the property vested in the trustees in bankruptcy. The bankrupt party did, however, have standing in relation to the non-vested assets including his interests in the parties self-managed superannuation fund. This is because some property, including most superannuation, is classified as exempt property and does not vest in the bankruptcy.

If my former spouse or de facto partner has been declared bankrupt, can I commence family law proceedings?

If your former spouse or de facto partner has been declared bankrupt, you may apply to the Court and seek an injunctive order restraining the bankruptcy trustee from declaring or distributing vested property amongst creditors. Before doing so, it is important to weigh up the competing claims, namely the status of the claim by the bankrupt’s creditors against the evidence of your claimed interest.

The Courts have accepted that a trustee in bankruptcy may hold matrimonial property on trust for the non-bankrupt spouse due to ‘…the special nature of beneficial ownership of property as between spouses irrespective of the fact that the legal title to the property may stand in one party’s sole name.’[2] The interest in property claimed by a non-bankrupt spouse is generally seen, however, to not have the same status against secured creditors.

Secured creditors vs non-secured creditors

In the matter of Gazi & Strobel [2021] FedCFamC 223, Mr Gazi commenced property settlement proceedings against his former partner who was an undischarged bankrupt, represented by the bankruptcy trustee. The parties had been in a de facto relationship for nine years and had three children together. The debt against the bankrupt partner was secured in the sum of $40,798.09.

The Court considered the rights of the non-bankrupt partner and found that his interest did not have the same status of a ‘secured creditor’. The Court ordered the bankruptcy trustee to pay the secured creditor from funds held in trust for the bankrupt estate on an interim basis for the matter was finally determined.

Seeking Advice in Australia

The impact on bankruptcy in family law matters can be extremely complex. Our firm is well-versed in the area of bankruptcy. If you, or your former partner is bankrupt and you are in the stages of separation, you can contact us at Dorter Family Lawyers & Mediators for legal advice.

When a relationship or marriage breaks down, it often brings about a range of challenges, including the need for financial support. In Australia, spousal maintenance is a legal provision aimed at ensuring that one party receives adequate financial assistance from their former partner after separation or divorce if they are unable to adequately support themselves.

In this article, we will provide information about spousal maintenance in Australia, including how it is decided whether spousal maintenance is required and how disputes surrounding spousal maintenance can be resolved.

What is spousal maintenance?

Spousal maintenance, also known as spousal support, refers to financial payments made from one spouse to another following a separation or divorce. Spousal maintenance payments are not automatic or guaranteed, however, they are usually awarded when one spouse is unlikely to be able to support themselves following a separation.

Spousal maintenance is determined on a case-by-case basis, taking into account several factors such as the financial needs and capacity of both parties to earn an income. The payment amount will depend on unique factors and is likely to be an amount that allows the recipient to maintain a reasonable standard of living.

While it is called spousal maintenance, de facto partners can also be eligible for financial support and this is often referred to as de facto partner maintenance.

You may have also heard of spousal support as being referred to as alimony. While similar in concept, alimony is a term used in the American legal system and not in the Australian family law system.

Which factors are considered when determining spousal maintenance?

Australian courts weigh various factors when deciding spousal maintenance arrangements, including:● Income, property, assets, and earning capacity of both spouses

• Age and health concerns limiting earning ability
• Whether children are involved requiring care from one spouse
• Standard of living during the relationship
• Direct and indirect financial contributions during marriage, including homemaking
• Duration of the marriage or relationship
• Sacrifices made, such as putting a career on hold to raise children

The court will assess the financial needs of the party seeking maintenance, including living expenses, mortgage or rent payments, and other necessary costs. It will also evaluate the paying party’s ability to meet these needs while still supporting themselves adequately.

How long does spousal maintenance typically last?

There’s no exact timeframe of how long a spousal maintenance order will last – it is dependent on your unique circumstances; however, the Court will usually specify a period of time appropriate for your situation.

Factors like the length of the marriage and if there are dependent children of the former couple will likely impact the duration of the spousal maintenance support period.

What financial needs and expenses does spousal maintenance cover?

Spousal maintenance aims to address the financial needs of the party seeking support. It typically covers living expenses, including costs associated with housing, utilities, food, and clothing.

Other necessary expenses such as healthcare and medical costs may also be included. The court will consider the specific circumstances of each case and assess the reasonable financial requirements of the receiving party to ensure they can maintain a reasonable standard of living.

Changing, ending, or enforcing spousal maintenance

Spousal maintenance orders can be varied if financial circumstances significantly change for either party. The paying spouse cannot arbitrarily lower or cease payments without applying to Court.

If the receiving spouse dies or remarries, the spousal maintenance will no longer be required. If the spouse who is paying the maintenance passes away, the spousal maintenance requirement will cease too.

If the paying spouse defaults on court-ordered payments, they are technically in breach of court orders which can have serious consequences. If you’re the receiving spouse and your former spouse does not pay their spousal maintenance payment, we recommend seeking legal advice before seeking enforcement.

What steps can individuals take to resolve spousal maintenance disputes outside of court?

In order to resolve spousal maintenance disputes outside of court, individuals have several options.

They can engage in negotiation and communication with their former partner to reach a mutually agreeable solution regarding the financial support. Mediation, where a neutral third party facilitates discussions, can also be a useful tool for resolving disputes. This process allows both parties to express their concerns and interests while working towards a fair resolution.

Seeking legal advice from family law professionals can provide guidance and help individuals navigate the negotiation or mediation process effectively.

Can spousal maintenance be awarded retroactively, or does it only apply to future support?

Spousal maintenance can be awarded retroactively in Australia. If a party seeking maintenance was not receiving adequate financial support during a specific period after the separation, they may be entitled to claim retroactive payments for that period.

The court will consider the circumstances and may determine the retroactive amount based on the financial needs and capacity of both parties during the relevant period. However, it’s important to note that each case is unique, and retroactive awards are subject to the court’s discretion based on the facts presented.

Seek professional legal advice

If you find yourself in a situation where spousal maintenance may be relevant, it is essential to seek legal advice from a qualified professional who can guide you through the procedure and help you understand your rights and commitments. Remember, every case is unique, and it’s crucial to approach it with patience and an open mind.

While rarely a smooth process, spousal maintenance can provide much-needed financial equability during a challenging divorce or separation. Understanding the ins and outs helps both parties uphold their rights and responsibilities. With proper legal support, Australian spousal maintenance laws aim to generate reasonable, balanced post-marital financial solutions.

Separation and divorce can be emotionally challenging, and understanding spousal maintenance can provide a sense of security and assist in the transition to a new chapter in life. With our support you can navigate the complexities of your financial matters and we will assist you with paving the way for a better future.

If you’ve separated recently or you are deep in the divorce process and you are concerned about financial stability and spousal support, contact us today. Our experienced family law and mediation team is here to provide clarity, help you gain confidence, resolve any dispute and allow you to move forward with your life.

You can discuss your situation with our family law team during a no obligation consultation.

When a marriage or de facto relationship ends it usually requires the resolution of various financial matters, such as the division of assets.

Also known as a property settlement, the division of assets is often a contentious and complex part of the dissolution of any marriage or de facto relationship. An aspect that can make it even more complex and contentious is how superannuation is to be treated during the process.

Superannuation is an important part of future planning and for many Australians, their superannuation represents a significant portion of their property and asset pool, and in some cases is of a higher values that many of their other assets.

Understanding how superannuation should be dealt with as part of a property settlement is important and, in this article, we will address the intricacies of how superannuation is to be treated in the event of a marriage or de facto relationship ending.

How is superannuation impacted by a divorce or separation?

Upon the breakdown of a relationship, whether it is a marriage or a de facto relationship, the parties to the relationship are entitled to a property settlement.

A property settlement is the division of the assets and liabilities of the parties to the relationship and includes property such as:

• Family home
• Real estate
• Investments
• Jewellery
• Inheritances
• Vehicles
• Savings and money
• Debts
• Mortgage loan
• Personal loan
• Credit card

In addition to the above property and liability types, superannuation is also considered to be a type of property that should be considered as part of the property settlement.

Superannuation is often one of the most valuable assets of an Australian adult and its inclusion in a property settlement is important as many factors may influence how much superannuation a person has been able to accumulate, such as taking time off work to raise children.

While superannuation is a type of property under the Family Law Act 1975, it is different to other types of property as it is held in a trust and remains subject to the superannuation preservation laws. This means that it cannot be converted to a cash asset and cannot be released unless you meet the criteria for release of the super fund.

What does the law say about splitting superannuation?

As superannuation is a type of property it should be considered as part of the total asset pool during a property settlement. This means that the superannuation of one party could be adjusted, transferred, or divided between the parties of a property settlement.

The laws around superannuation splitting are the same for both de facto couples and married couples throughout Australia.

When are you entitled to a superannuation split?

You may either be entitled to a superannuation split or potentially be legally required to split your superannuation if you were married and have separated or divorced or if your de facto relationship has ended in separation.

To be considered to have been in a de facto relationship, you need to have been in the relationship for at least 2 years or to have had a child of the relationship. There may be exceptions to this, however, it will be dependent on your unique circumstances.

Who decides how superannuation will be split?

Like many other family law matters, there are a few different options when it comes to who gets to decide how the superannuation is handled when a relationship breaks down.

The parties to the relationship can decide together and come to an agreement privately, the couple can enlist the help of legal professionals like family lawyers and/or mediators, to facilitate negotiations and communication, or if an agreement cannot be reached in any way, an application for a property settlement order can be made to the Court.

The Australian family law system encourages people to make decisions themselves or at least outside of Court, as it is often more efficient and allows the parties to have more control over the outcome.

The right option for you will be dependent on your circumstances, in some instances former partners are able to come to an agreement, while for others the lines of communication are strained and reaching an agreement is just not possible.

Even if you are able to reach an agreement, we recommend seeking legal advice to ensure that you’ve considered all relevant aspects and your settlement agreement is fair.

How can superannuation be split when you separate?

When it comes to deciding how superannuation should be handled and split in a property settlement, there are a few options.

Option 1: Split the super.

One person’s superannuation may be split, and this in itself can be done in various ways. For example, the total value of both parties’ superannuation accounts could be valued and then split, which would likely result in funds being transferred from one person’s super account to the others. The split could 50/50, it could be 70/30 or it could be another value and will be dependent on a variety of factors, which we will discuss shortly.

Option 2: Take the superannuation into consideration.

In this option, the superannuation is considered as part of the overall property settlement and the remaining assets are split to account for the differences in the superannuation, so that each party is left with their agreed upon portions without having to make transfers between superannuation accounts.

Option 3: Defer the decision.

A decision of how to split the superannuation can be deferred and a flagging agreement is applied. Rather than making an immediate decision about how to split their superannuation entitlements, couples can choose to “flag” this aspect for future consideration.

Under a flagging agreement, the couple agrees not to split their superannuation at the time of their property settlement. Instead, they defer the decision to a later point in time. This could be when one or both parties reach their retirement age or when specific events, such as the sale of a property or the conclusion of child support payments, occur. By doing so, couples can avoid rushed decisions and gain a clearer understanding of their financial needs as circumstances change over time.

This is not a commonly used approach but is a possible option.

How much superannuation am I entitled to, or will I have to pay?

Calculating a superannuation split and a property settlement is not easy, and many different factors will influence the outcome. The Australian family law system requires that the division of property is just and equitable, but this doesn’t necessarily mean that both parties should be getting the exact same amount or that they are entitled to a 50 50 split.

Factors such as the length of the relationship, the contributions of the parties to the assets and relationship overall, and the ongoing needs will all play an important role in determining how superannuation and the other assets should be split. Other factors, like the age and health of the parties, dependent children, and the ability of each party to earn an income in the future will also have a significant impact.

When considering the superannuation element of a property settlement in particular, factors such as the need for cash assets for one party could play a role. For example, if one party wishes to purchase a property, they could benefit from having a higher proportion of the cash assets rather than superannuation. Or if someone is nearer to retirement age, it may be in their best interests to retain their superannuation.

Whether you can reach an agreement with your former partner or you’re not sure where to start in the superannuation splitting process, we recommend seeking legal advice.

Has splitting your superannuation become a sticking point in your separation?

If you are currently involved in a property settlement dispute or you’ve recently separated and you’re concerned about how your assets will be split, you can talk to us here at Dorter Family Lawyers and Mediators.

Our family law team is well versed in property settlement matters, including splitting superannuation and ensuring that your property settlement agreement is just and equitable. Discuss your situation with us today in a no obligation consultation.

Becoming a parent isn’t always planned. While some people may meticulously plan when they have children, for others, pregnancy and parenthood can come as a surprise, such as a one night stand resulting in a pregnancy.

In situations where an unplanned pregnancy occurs and a child is born, it’s common for questions to arise about responsibilities and obligations.

In this article, we’re exploring the topic of unplanned pregnancy, parenthood and the obligations of biological parents.

Am I a parent? And if I did not consent to the birth of a child, do I have any obligations?

Where a child is conceived unintentionally, and irrespective of whether you agreed to the child’s birth or not, you may be liable to pay certain costs associated with the child’s birth and maintenance over the subsequent 18 years.

In Australia, a presumption of parentage arises in a number of circumstances: –

• when your name is recorded on the child’s birth certificate and thus in a register of births, you are presumed to be a parent of the child; or
• if a child is born while you are married to the mother of the child, you are presumed to be a parent of that child; or
• if you are living with the mother of the child beginning 44 weeks and ending 20 weeks before the birth of the child, you are presumed to be a parent of that child.

One might assume that refusing to admit that you are the father of a child would release you of some or all of your parenting obligations. However, the mother can still apply to the Federal Circuit and Family Court of Australia and seek a declaration of parentage.

Evidence such as DNA parentage testing can rebut the presumption of parentage and the Court can issue a declaration of paternity.

What if the DNA parentage testing confirms you are the father?

If a person is found to be the biological father of a child through DNA parentage testing, various obligations arise.

Liability During and After Pregnancy

You, as the father, may be liable to contribute towards the maintenance of the mother and the mother’s reasonable medical expenses in relation to the pregnancy and birth. Such expenses will commence either two months before the child’s due date or from an earlier date if the mother stops working based on medical advice related to the pregnancy. The period ends three months after the child’s birth. This is classified as the ‘childbirth maintenance period’ under section 67B of the Family Law Act 1975 (Cth) (“the Act”).

In deciding what amount is appropriate, the Court will consider the following: –

• income earning capacity, property and financial recourses of the mother and father;
• the parents’ necessary commitments for supporting themselves, any other child or other person;
• any special circumstances which if not taken into account would result in injustice or hardship to any person.

When deciding on an amount payable by the father, the Court will not take into account any income-tested pension allowance or benefits that the mother is entitled. Nor, will the Court take into account expenses associated with the child, such as baby items. These are not categorised as ‘maintenance of the mother’, whereas the mother’s living costs may be considered.

Parenting and Child Support

A common question that arises is whether a father is required to pay child support if he did not agree to the child’s birth.

Child Support

As a parent, you may be liable to pay child support up until your child attains 18 years of age, particularly if the mother has the primary care of the child.

In certain circumstances, it may be appropriate to enter into parenting orders by consent or execute a Binding Child Support Agreement (“BCSA”) pursuant to section 80C of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”).

There are two principal ways in which a mother can receive child support:-

• by applying to the Child Support Agency for an administrative assessment in accordance with the Assessment Act; or
• by applying for the acceptance of an agreed BCSA under Pt 6 of the Assessment Act.

An administrative assessment is based on the parents’ taxable income, how many nights the child spends with each parent, and the age of the child. If you refuse to pay child support as assessed, the amount becomes a debt due and payable and can result in legal action being brought to recover the debts.

A BCSA can be a more appealing alternative for you as opposed to being assessed by the Child Support Agency. The benefit of a BCSA (entered into after each parent has received independent legal advice) is that it provides certainty as to any child support payable, is an arrangement that suits each parents’ particular circumstances and can be a substitute for any child support assessment.

What if I am not the father and the mother has applied for a Child Support Assessment?

If you do not believe that you are the father of the child and thus not liable to pay child support, an application can be made to the Court for a declaration under section 107 of the Assessment Act. The Court may order DNA testing prior to making such a declaration.

Is the law any different for a child of a de facto partner?

You may be considered to be in a de facto relationship if you are a couple living together on a genuine domestic basis.  The birth of a child can affect whether a relationship may be defined as being a de facto relationship for the purpose of claim for property settlement or spouse maintenance.

The Act makes provision for parentage of children of de facto partners. One scenario that arises is if your de facto partner adopted a child and you consented to the adoption, you are considered to be a parent of that child.

Another scenario that can occur is where a child is born as a result of artificial conception. For instance, by way of artificial insemination or the implantation of an embryo in the body of a woman. At the time the child is conceived, if you are in a de facto relationship and you consented to the artificial conception, you are considered to be a parent of the child.

What rights do both parents have in relation to the child?

Under Australian family law, both parents hold joint parental responsibility for their child, regardless of the circumstances of their conception. This means that both parents have a right to be involved in making important decisions about the child’s life, even if the child was conceived from a one night stand. These decisions encompass various aspects, including education, medical treatment, and religious upbringing. The law acknowledges the importance of fostering a meaningful relationship between the child and both parents.

What if you don’t have a relationship with the person but you wish to be involved in the child’s life?

When a child is conceived as a result of a one night stand and there is no established relationship between the parents, the question of involvement in the child’s life often arises. The Australian family law system does emphasise the importance of joint parental responsibility and the child’s best interests.

Parenting plans and arrangements become essential tools in such cases. While you may not have a pre-existing relationship with the other parent, it is still possible to develop a parenting plan that outlines how you both intend to share parental responsibilities. These plans are tailored to the unique circumstances of each situation and can help define the roles, responsibilities, and time-sharing arrangements between parents.

In a situation where you have no relationship with the other parent, you may face unique challenges in these circumstances. We highly recommend seeking legal advice from experienced family lawyers so that you know the options available to you.

Do I have to be involved with making decisions for this child?

Even if the child’s conception was unplanned and arose from a one night stand, both parents are expected to share in making significant decisions about the child’s life. However, the law does not require each parent to make equal or positive contributions to these decisions. The way you handle your parental responsibility is unique to your situation, however, we highly recommend seeking legal advice to ensure that you are fulfilling your legal obligations.

Do I have to spend time with the child?

While the child’s conception might have been unplanned, both parents still have a responsibility to consider the child’s best interests. This includes the child’s right to have a meaningful relationship with both parents. Deciding not to spend time with the child is a significant choice and should be made thoughtfully, as it may impact the child’s emotional well-being and development.

Is there such a thing as entrapment in Australia?

It is important to note that entrapment is not recognised as a legal defence in the context of unplanned parenting resulting from one night stands under Australian family law. Regardless of the circumstances of conception, the focus remains on the best interests of the child and the legal rights and responsibilities of both parents.

Seeking Legal Advice

Ultimately, each scenario is unique and determining the steps to take when faced with an unplanned or unexpected birth can be challenging. Whether it is determining what costs you may be required to pay the mother, if you need to file an application seeking a declaration of paternity, or you wish to execute a BCSA, discuss your situation with us at Dorter Family Lawyers & Mediators. We understand that parenting is complicated at the best of times, even more so when it is completely unexpected and our firm is well-versed in these areas and highly experienced in all areas of Family Law.

A prenuptial agreement is a valuable resource for couples contemplating marriage or a de facto relationship. In the modern landscape of relationships, it’s essential to have a clear understanding of how financial matters will be handled in the event of a separation or divorce.

Prenuptial agreements, also known as Binding Financial Agreements (BFAs), offer a legal framework that can bring certainty, protection, and peace of mind to couples entering into a life together.

Prenups may seem unromantic at first glance, but they serve as a strategic tool to safeguard your financial interests, preserve your assets, and outline the division of property and liabilities should the unfortunate need for separation arise.

By establishing a prenup, you take control of your financial future, ensuring that your wishes are respected during both the highs and lows of your relationship.

In this article, we will discuss all things prenuptial agreements, including what can be covered by one, when they are a good option and how to know when you need one.

There are various reasons why a couple may want to enter into a prenuptial agreement. Whether you’re a couple with substantial assets, own a family business, have children from previous relationships, or simply want to clarify your financial expectations, a prenuptial agreement may provide the desired outcome.

What is a prenuptial agreement?

A prenuptial agreement, within the Australian family law framework, is referred to as a Binding Financial Agreement (BFA). This legal document is crafted between couples before their marriage or before they commence living together as a de facto couple.

The primary objective of this agreement is to establish a clear roadmap for the division of assets and property in the unfortunate event of a separation or divorce. By setting out these provisions in advance, the parties involved can safeguard their financial interests and retain the ability to make decisions about their future without resorting to court intervention.

This legally binding agreement encompasses a comprehensive understanding of each individual’s assets, property, and potential liabilities. It outlines the rights and entitlements of each party concerning these aspects following the marriage. Essentially, the BFA is a written contract that not only delineates the financial standing of both individuals but also delineates how financial matters will be handled should the relationship come to an end.

It’s important to note that the term “prenuptial agreement” is commonly used interchangeably with “Binding Financial Agreement.” However, in the Australian legal context, the latter is the accurate and legally recognised terminology.

Who is eligible to enter into a prenuptial agreement within the Australian family law system?

To participate in a prenuptial agreement under the Australian family law framework, individuals must be legal adults, (18 years of age).

This arrangement is open to couples intending to marry or embark on a de facto relationship, including both heterosexual and same-sex couples alike.

What does a prenuptial agreement encompass within the context of Australian family law?

A prenuptial agreement can encompass a diverse array of subject matters under the purview of Australian family law and extends to assets acquired prior to the relationship’s commencement, as well as those procured during its course.

Among the assets that may be included in a prenuptial agreement are:

• Money: Financial holdings and currency.
• Real Estate and Property: Ownership interests in land and properties.
• Businesses: Stake in business ventures or enterprises.
• Inheritances: Assets bequeathed from family members or other sources.
• Investments: Monetary ventures designed for potential growth or profit.
• Superannuation: Retirement funds and pensions.

Beyond the realm of property and assets, a prenuptial agreement may address other vital considerations such as provisions for spousal maintenance, delineating responsibilities for the settlement of debts and liabilities, as well as outlining the entitlements of both present and future children.

Is a prenuptial agreement enforceable in Australia?

Yes, prenuptial agreements are generally legally binding under Australian law, as long as they meet the requirements specified in the Family Law Act 1975.

One essential requirement is that both parties must have received independent legal advice. This advice serves to inform the parties about the effect of the agreement on their rights, the advantages and disadvantages of entering into it, and the overall fairness and equitability of its provisions.

However, there are instances where courts can set aside a prenuptial agreement if it is found not to comply with the legal prerequisites or if specific conditions are met. To learn more about when a prenuptial agreement or binding financial agreement can be set aside, read this.

What are the pros and cons of prenups?

Prenuptial agreements have their advantages and drawbacks, including but not necessarily limited to:

Pros of Prenuptial Agreements:

Transparency and Clarity

Prenups provide transparency by outlining each party’s assets and their distribution. This clarity may reduce confusion and potential disputes later on.

Wealth Protection

Prenups can safeguard individual wealth brought into the marriage and assets acquired during the marriage. They may help designate separate and shared property, protecting financial interests.

Security and Planning

Prenups can prepare couples for potential divorce risks, ensuring financial security for both parties regardless of the marriage’s outcome.

Prevent Disputes

By establishing asset division and financial expectations upfront, prenups can prevent future disputes and arguments over property distribution.

Protection for Children

Prenups can protect assets for children from previous marriages and establish provisions for inheritance, ensuring their financial well-being.

Business Protection

Prenups can safeguard business interests and succession planning, ensuring business assets remain unaffected in the event of a divorce.

Cons of Prenuptial Agreements:

Lack of Romance

Prenups introduce practical discussions about asset division and divorce before marriage, potentially dampening the romantic atmosphere associated with weddings.

Uncertainty

Prenups are not always foolproof. If assets are hidden or not disclosed fully, the agreement may not hold up in court. This uncertainty can lead to legal challenges.

Not Always Enforceable

A poorly drafted prenup may not be enforceable in court, potentially rendering its terms ineffective and providing no protection.

Potential for Conflict

Discussing and negotiating a prenup could strain the relationship, leading to disagreements or conflicts between partners.

Questioning Commitment

The presence of a prenup might raise doubts for a couple about the long-term commitment and confidence in the relationship’s success.

Legal assistance for prenuptial agreements in Australia

If you require guidance or assistance with a prenuptial agreement in Australia, or concerned with its validity, you can discuss your situation with our family lawyers here at Dorter Family Lawyers and Mediators. We are experienced in a wide variety of family law and financial matters, including advising on prenuptial agreements in Australia.

Discuss your situation with us today in a no obligation consultation. Get in touch with us by calling us on 02 5566 2998 or booking online here.