The division of property following divorce or separation

Some key points about property settlement after divorce

Separation is not easy on either party or on the dependants and other family members. The question of who gets what after the divorce only serves to complicate the issue further, if you are not fully aware of what the law has to say in the matter. The complications can be quite enormous if you jointly hold property of significant value in various locations. The Family Law Act covers these aspects and it can be enforced by local courts, the Family Court of Australia or the Federal Court. Take a quick look at some key points to know about how property settlement after divorce is treated under Australian law.

You can reach an agreement with your partner about property settlement

The best way to go about dividing the property between the two of you is to discuss the issue and come to an agreement between you both. If you are unable to reach agreement, you may need to engage lawyers to arrive at an acceptable division strategy. Once you have finalised the division, this can be put into writing and consent orders can be sought. On receipt of the legal consent, your property division agreement is legally binding on both of you and you can proceed to make the settlement without further complications.

When you cannot agree on a settlement strategy

In such a situation, you will need apply to the relevant court for legal assistance. Typically, the Federal Court or the Family Court handles these applications. The procedure involves a hearing before the judge, following which the court decides how to divide the property. There are four steps in the property settlement process:

  • All the assets and liabilities (both cash and non- cash) belonging to either partner are identified and valued. Experts may be called in, if necessary, to ensure that a fair and accurate valuation is made.
  • The contribution of either partner in the relationship is measured. It is not restricted to merely cash contributions, but also includes the effort and time of a partner invested in parenting or in taking care of the home. The duration of the relationship, the presence of dependent family members (such as children) and many other factors play a key role in helping the court make a fair assessment of contributions.
  • Evaluation of the future needs of either partner is the third step and many aspects are factored in here as well, such as the age of both partners, the earnings and earning potential, standard of living, and the person who is more qualified to care for a child from the relationship.
  • The final and critical step is an objective look at whether the proposed property division is fair and just to both parties involved.

Icon Legal can assist you further advice or assistance in relation to the division of property or any other family law matter.

Unapproved Alterations When Purchasing Property

The old saying of ‘buyer beware’ still rings true when purchasing a house in Queensland.  This is especially important when it comes to unapproved alterations or extensions to a property.

When you’re considering buying a house it is important to be aware of where the risks and responsibilities of the purchase process lie at any given time, as they often shift as the process moves forward. Unapproved alterations and extensions to a property are one these shifting responsibilities.

Prior to signing the contract of sale, it is the responsibility of the seller to ensure that any alterations to the property have the required Council approval.  If no notice has been issued by the Council in relation to the work, then there is no requirement that the seller comply with the required approvals prior to entering into the contract.   Further, the seller is not legally obliged to disclose this material information to a buyer.

Former Queensland Fair Trading Minister Peter Lawlor described the situation as follows:

While a real estate agent needs to verify the material facts when selling a property and encourage the seller to disclose all information, there is no obligation or legal requirement for the agent or seller to conduct building and pest inspections, or conduct council approval surveys prior to listing a property for sale.”

Once the contract is signed, the responsibility for these approvals shifts to you; the buyer, who is left with having to deal with the unapproved structures.

You may think that you are protected under the pest and building inspection clause and you will be able to terminate the contract on these grounds.  This is not the case in Queensland.  These inspections are limited to looking at the structural integrity of the house as opposed to whether it has the required Council approvals.

While standard practice in a transaction is to conduct a building and pest inspection as part of the purchase process, an inspection of Council building approvals is not part of the standard process.  Regardless, once the contract has been entered into, any unapproved structures become the buyer’s issue if no notice has already been issued.  So unless the Council has previously issued a notice to the seller about the alteration, then the seller is under no obligation to make any disclosure to the buyer or to comply with the notice.  Hence the term ‘buyer beware’.

So what should you do?

If you have concerns that the property may have been altered or an extension added then it may be worthwhile seeking legal advice prior to signing the contract.  Don’t fall into the trap of becoming liable for any future notices in relation to the property.  This notice could include a requirement to apply for Council approval, carry out of any rectification works, or potentially to demolish the unapproved alteration to the property.

A lawyer can draft a special condition for the contract, which will make the purchase subject to the outcome of relevant searches; giving you a right of termination should any unapproved alterations or extensions be found.

Call us at Icon Legal on (07) 3399 6006 if you would like advice about purchasing a property.

Why You Should be Wary of Rebates when Purchasing Queensland Property

Rebates can sometimes be offered as an inducement for a buyer to enter into a contract to purchase a property. They can commonly be offered by developers. Care must be taken as this can be seen as a misrepresentation of the purchase price and possibly an attempt to defraud a financier or the ATO.

The main issue is not the rebate itself, but whether it has been disclosed correctly. That is, the ‘true’ purchase price must be divulged.

There is a further issue in that the information contained in the transfer documents may distort the data kept on various land databases, thereby spoiling the integrity of that information. These databases store information that is widely available and may mislead valuers and/or buyers in the future.

We strongly recommend that a solicitor review any contract containing a rebate clause prior to entering into it.