The most challenging Family Law Property Division Questions

On 29 March 2023 our Director, Anna Roberts and Accredited Specialist in Family Law, Marie Hayter hosted a live Facebook Q&A answering the most challenging Family Law Property Division questions, see below their answers.

The below content is the third part of a three part series answering:

  1. The most Challenging Family Law Parenting Questions
  2. The most Challenging Family Law Separation Planning Questions
  3. The most challenging Family Law Property Division Questions

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Director, Anna Roberts and Accredited Specialist in Family Law, Marie Hayter answer the following questions:

  1. If the family home/investment property is solely in the name of my ex can they sell it before finalising the property settlement?
  2. What happens if I don’t formalise a property settlement promptly following separation, especially when assets are in my ex’s name?
  3. Can you formalise a property settlement without a lawyer?
  4. Is an informal property settlement with my ex binding?
  5. How do private school fees get accounted for in Child Support Assessments?

If the family home/investment property is solely in the name of my ex can they sell it before finalising the property settlement?

  • Yes, they have the legal right to sell it but there are avenues through the Family Court to stop them.
  • If the property has already been sold there are avenues through the Family Court to protect the proceeds from being spent before a property division occurs.
  • Best to be proactive and instill your interest in the property early on.

What happens if I don’t formalise a property settlement promptly following separation, especially when assets are in my ex’s name?

  • Time limits apply to make a property division claim.
    • Defacto relationships – 2 years from date of separation.
    • Marriages – 1 year from the date of Divorce.
  • Property that exists at the time of the division is what is to be divided.

Can you formalise a property settlement without a lawyer?

  • Yes, it is possible.
  • Completing the documents correctly, so that the Court can indorse them is difficult if you are not a Lawyer.
  • If you do the documents wrong and the Orders are made by the Court, you will be stuck with them.
  • You do not get the opportunity to redo Orders just because you didn’t have a Lawyer the first time.

Is an informal property settlement with my ex binding?

  • No, the only way you can make a binding agreement is through a formal financial agreement that is strictly governed by the Family Law Act.

How do private school fees get accounted for in Child Support Assessments?

  • Child Support Assessments do not ordinarily take into account private school fees.
  • If both parties agree, an application can be made to the Child Support Agency to change the usual assessment to include the cost of school fees.
  • A specialist Family Lawyer can assist you to document an agreement for paying school fees outside of Child Support payments.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.

Author
Special Counsel
Accredited Specialist (Family Law)