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Dividing your assets after a breakdown of your relationship
Everyone has their own personal experience following the breakdown of a relationship.
Below are some facts about property settlement that will arm you with important information to assist you in determining how and when you should take the first steps to move forward.
TIME LIMITATIONS APPLY
Your relationship is at an end, you feel overwhelmed. You delay dealing with the division of your assets because you don’t know where to start or who to speak to.
It’s important to understand that there are time limits within which parties must finalise financial arrangements after the breakdown of a relationship.
Parties who have been married are required to commence proceedings for property settlement within 12 months of an order for Divorce taking effect. Parties seeking to commence proceedings outside this 12-month period are required to seek the leave/ or permission of the Court.
This can add to additional cost, delay and stress.
A party to a de facto relationship must apply for property settlement within 2 years of the date of separation.
MY FORMER PARTNER AND I HAVE REACHED A “KITCHEN-TABLE” AGREEMENT. WHAT NOW?
It is important to document the terms of property settlement in a way that is legally binding. Failing to do so can lead to your financial relationship being left unfinalised. This can have flow on effects for your finances into the future.
There are two options available to parties wishing to finalise the terms of property settlement and ensure that the agreement is legally binding:
1. Obtaining Orders from the Court
Once agreement has been reached as to the terms of property division an Application may be made to the Family Court of Australia seeking that the terms reached be approved by the Court.
The Court will consider the Application “on the papers” without requiring the parties’ attendance at Court. If the Court deems the terms of your agreement to be just and equitable, the Court will formalise the terms of your agreement by approving those terms as an Order of the Court.
2. Financial Agreement
The second option available is for the parties to document the terms of the agreement reached by way of a private agreement called a Financial Agreement. Financial Agreements are not required to be filed with the Court and do not require the Courts approval.
To enter into a Financial Agreement both parties must obtain independent legal advice. The Court does have the power to set aside Financial Agreements in limited circumstances. The strength of Financial Agreements rests in both in the careful drafting of the agreement and in the parties complying with their financial disclosure obligations.
Due to the complexities involved in drafting Financial Agreements, it is imperative that parties receive legal advice in relation to which form of property settlement is most appropriate given their circumstances.
There are occasions where both options may be exercised together.
Seeking legal advice sooner rather than later
A common misconception is that the assets of the relationship/or the assets of the parties are valued at the date of separation.
For example, Question: we separated in January 2020, we are now seeking advice in March 2021, is the relevant value the value as at January 2020?
Answer = No.
The assets are in fact valued at the date that negotiations take place, or at the date upon which a Court is asked to determine the division of property between parties, not at the time of separation. It is beneficial to settle property matters sooner rather than later. Obtaining legal advice early allows parties to protect their interests and given careful consideration to relevant matters such as whether assets are likely to increase or decrease and the risk of liabilities continuing to rise.
Peace of Mind
The earlier property settlement is achieved, the sooner parties have peace of mind and the ability to move forward with financial certainty.
We can assist you with commencing this process to give you direction and confidence in moving forward with achieving property settlement.
Binding Child Support Agreement set aside as the financial impact of COVID-19 gives rise to a finding of exceptional circumstances
The financial effects of COVID-19 are being felt far and wide in our community. Many people are finding they are no longer able to sustain financial commitments they made prior to the pandemic.
The Court has recently been required to consider whether a Father’s obligation pursuant to a Binding Child Support Agreement should be set aside as a result of the significant impact the global pandemic has had on his business and in turn his income.
Martyn & Martyn [2020] FamCA 526
In the recent decision in Martyn & Martyn [2020] FamCA 526 the Court was required to consider whether a Binding Child Support Agreement (“the Agreement”), entered into in 2012, should be set aside as a result of the detrimental impact that COVID-19 had had on the income of the Father.
The Father operated a business supplying product to international companies. The total sales of his business had reduced by 90% as a result of the COVID-19 pandemic. The Father submitted that both he and his current partner were now reliant on Job Keeper and the business they operated had laid off 100 casual workers. The international and domestic border restrictions the downturn and the Father anticipated an insolvency event by September 2020.
The Mother opposed the Agreement being set aside and argued that the Agreement should be suspended to allow the impacts of COVID-19 to pass, rather than terminating the Agreement.
Binding Child Support Agreements are not easily set aside or departed from without agreement. In order to set aside a Binding Child Support Agreement, the Court is required to be satisfied of the following three matters:
In this matter the Court found that:
The Court declined to exercise its discretion to suspend the Agreement rather than set it aside as was sought by the Mother. In doing so the Court said that there was an “understandable absence of evidence as to the likely duration and impact of the COVID-19 pandemic on international commence”.
This decision highlights the devastating financial effects that the COVID-19 related restrictions have had on individuals financial circumstances and in turn the effect this has and will continue to have on the ability of people to meet their financial obligations, including payment of child support.
The Court has recently been required to consider whether a Father’s obligation pursuant to a Binding Child Support Agreement should be set aside as a result of the significant impact the global pandemic has had on his business and in turn his income.
Martyn & Martyn [2020] FamCA 526
In the recent decision in Martyn & Martyn [2020] FamCA 526 the Court was required to consider whether a Binding Child Support Agreement (“the Agreement”), entered into in 2012, should be set aside as a result of the detrimental impact that COVID-19 had had on the income of the Father.
The Father operated a business supplying product to international companies. The total sales of his business had reduced by 90% as a result of the COVID-19 pandemic. The Father submitted that both he and his current partner were now reliant on Job Keeper and the business they operated had laid off 100 casual workers. The international and domestic border restrictions the downturn and the Father anticipated an insolvency event by September 2020.
The Mother opposed the Agreement being set aside and argued that the Agreement should be suspended to allow the impacts of COVID-19 to pass, rather than terminating the Agreement.
Binding Child Support Agreements are not easily set aside or departed from without agreement. In order to set aside a Binding Child Support Agreement, the Court is required to be satisfied of the following three matters:
- That there are exceptional circumstances which relate to a party to the agreement or a child in respect of whom the agreement is made;
- That those exceptional circumstances arose after the agreement was made; and
- That the applicant or the child will suffer hardship if the agreement is not set aside.
In this matter the Court found that:
- The Father would be unable to pay child support as required by the Agreement due to his significantly reduced income;
- The COVID-19 pandemic was an exceptional circumstance; and
- If the Court did not set the Agreement aside the Father would suffer hardship.
The Court declined to exercise its discretion to suspend the Agreement rather than set it aside as was sought by the Mother. In doing so the Court said that there was an “understandable absence of evidence as to the likely duration and impact of the COVID-19 pandemic on international commence”.
This decision highlights the devastating financial effects that the COVID-19 related restrictions have had on individuals financial circumstances and in turn the effect this has and will continue to have on the ability of people to meet their financial obligations, including payment of child support.
Navigating Leases and the COVID-19 Outbreak – Part 8
On 20 August 2020, the Victorian Treasurer announced an extension to the existing rent relief scheme and some further measures to assist landlords and tenants.
The details of the existing rent relief scheme are housed in the COVID-19 Omnibus (Emergency Measures) Act 2020 (“the Omnibus Act”) and the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (“the Regulations”).
Among other things, the Omnibus Act and the Regulations sought to implement temporary measures to apply to tenants and landlords under certain eligible leases to mitigate the effect of measures taken in response to the COVID-19 pandemic, and to implement mechanisms to resolve disputes concerning eligible leases.
Amendments to the Omnibus Act were not unexpected, as the Omnibus Act automatically expires on 29 September 2020.
The proposed extension and amendment to the rent relief scheme are contained in the COVID–19 Commercial and Residential Tenancies Legislation Amendment (Extension) Bill 2020 (“the Bill”) which was debated in the Victorian parliament last week.
Should the Bill pass, the Omnibus Act will be amended in the following ways:
The Bill also seeks to make amendments to the Residential Tenancies Act 1997 (“the RT Act”), including:
Part 16 of the RT Act outlines the temporary provisions to apply for tenancy agreements, residency rights in rooming houses, residency rights in caravan parks, site agreements and Specialist Disability Accommodation (SDA) residency agreements during the COVID-19 pandemic.
We are closely monitoring these changes and will provide a further update once the amended Regulations are enacted.
Wisewould Mahony will continue to provide assistance to both our landlord and tenant clients with respect to lease negotiations. If you require our assistance with these negotiations, or to prepare a Deed of Variation of Lease, or to refer a dispute to mediation if you are unable to reach an agreement, or advice in relation to the recent changes to the Acts and Legislation, please do not hesitate to contact any member of our leasing team.
The details of the existing rent relief scheme are housed in the COVID-19 Omnibus (Emergency Measures) Act 2020 (“the Omnibus Act”) and the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (“the Regulations”).
Among other things, the Omnibus Act and the Regulations sought to implement temporary measures to apply to tenants and landlords under certain eligible leases to mitigate the effect of measures taken in response to the COVID-19 pandemic, and to implement mechanisms to resolve disputes concerning eligible leases.
Amendments to the Omnibus Act were not unexpected, as the Omnibus Act automatically expires on 29 September 2020.
The proposed extension and amendment to the rent relief scheme are contained in the COVID–19 Commercial and Residential Tenancies Legislation Amendment (Extension) Bill 2020 (“the Bill”) which was debated in the Victorian parliament last week.
Should the Bill pass, the Omnibus Act will be amended in the following ways:
- The operation of the commercial tenancy provisions of the Omnibus Act will be extended from 29 September 2020 to 26 April 2021.
It is unclear at this stage whether the prohibitions on terminations extend to both termination for non-payment of rent and termination for not trading. - To allow the definition of ‘eligible lease‘ under section 13 of the Omnibus Act to be prescribed by the Regulations.
- The Omnibus Act currently defines an ‘eligible lease’ to be a lease under which the tenant is an SME tenant and an employer who qualifies for and is a participant in the JobKeeper scheme.
This amendment may address issues that have arisen around the requirement that a tenant be an employer, which has created difficulties for tenants who are sole traders and tenants who operate a service company, and the requirement that the tenant itself be a participant in JobKeeper, which can cause problems for tenants who use a service company.
The Bill also allows the making of binding orders directing landlords under eligible leases to give or agree to give specified rent relief to tenants under eligible leases and conferring jurisdiction on VCAT to enforce such orders.
The Bill also seeks to make amendments to the Residential Tenancies Act 1997 (“the RT Act”), including:
- The operation of Part 16 (COVID-19 temporary measures) is extended until:
- 28 March 2021; or
- if a later date is fixed by Governor in Council (being a date after 28 March 2021 and before 27 April 2021), that date.
Part 16 of the RT Act outlines the temporary provisions to apply for tenancy agreements, residency rights in rooming houses, residency rights in caravan parks, site agreements and Specialist Disability Accommodation (SDA) residency agreements during the COVID-19 pandemic.
We are closely monitoring these changes and will provide a further update once the amended Regulations are enacted.
Wisewould Mahony will continue to provide assistance to both our landlord and tenant clients with respect to lease negotiations. If you require our assistance with these negotiations, or to prepare a Deed of Variation of Lease, or to refer a dispute to mediation if you are unable to reach an agreement, or advice in relation to the recent changes to the Acts and Legislation, please do not hesitate to contact any member of our leasing team.