Family Law Property FAQs

Frequently Asked Questions about Property Matters in Family Law cases.

Can I finalise my Property Matters even though I am not divorced yet?

Yes, you can. In fact, the sooner you finalise your Property Matter the better it is for you, as you can then be sure that your financial interests are protected, and that the other party does not have a claim to your assets.

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My partner tells me that the house is his/hers because it’s in their name only. Is that correct?

No. Regardless of whether the property is in one name or in joint names, it will most likely be treated as a matrimonial asset. This is dependant on a number of things such as what the parties have contributed, and the length of the relationship. As such, just because your name is not on the title or just because you are not the registered owner, does not necessarily mean that you do not have an interest in the property in question.

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I am a housewife and I have not worked during the relationship. My husband says that because I haven’t worked, I won’t get anything if I leave him. Is that true?

No. Chances are you have looked after the children and taken care of the household chores such as cooking and cleaning. These are called non financial contributions and are certainly taken into account by a Court when considering what is fair and reasonable in any property settlement. This means that you will be entitled to part of the property pool. To find out how much, arrange an appointment with our office so that we may provide you with our advice.

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My partner has had an affair. Will I get more out of the settlement?

No. Australia has what is called a “no-fault system”, which means that the reasons as to why a relationship has broken down, such as an affair, does not impact the way that property is split. If however, your partner has wasted your assets in the course of such an affair, then the Court will take that behaviour into account when they consider how to fairly divide the property pool.

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Do I have to pay for an expert valuation of our home or is there another way?

If the value of the home is disputed then yes, you will most likely need to have the property valued. Generally, one expert is appointed by the parties to value the property and the costs of that expert are shared between the parties. The costs of the expert valuer will vary depending on who you engage.

Before you take these steps however, you should first obtain an appraisal so that you can get a general idea of what the property may be worth. You may wish to obtain a few valuations and agree to adopt a median price, thereby avoiding the costs of an expert valuation.

An appraisal can be conducted by your local real estate agent. Contact us today if you wish to discuss the matter further or require a list of some experienced real estate agents that may be able to assist.

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Am I automatically entitled to 50% of the property pool?

No. How your property is divided will depend on a number of things including the length of your relationship. Generally, we assess your entitlement by taking the following steps:-

Firstly, we ask you to identify the property pool. It is therefore important that you have an idea of the value of your assets and liabilities when you come and see us.

Secondly, we will ask you what financial and non financial contributions have been made by you and your partner at the commencement of the relationship, during the relationship and post separation.

Thirdly, we will look at whether any adjustments will need to be made for either party in relation to future needs. We will therefore ask questions regarding your earning capacity; whether either of you have health concerns and how any child/ren of the relationship will be cared for.

Finally, and once we have identified the likely range of your entitlement, we will then discuss how best to structure any offer and/or Agreement to ensure that it is just and equitable for both parties.

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I am in a De facto Relationship, do the same rules apply in determining what I am entitled to.

If you separated after 19 March 2009, the same rules will apply.

If you separated prior to 19 March 2009 your matter is covered by different legislation being the Property Law Act instead of the Family Law Act and some differences will apply mostly in relation to spousal maintenance and how your Superannuation is treated.

Importantly, if you separated prior to 19 March 2009 and you have not finalised your Property Matters, you should contact us urgently as your time limitation to do so will have already expired.

Contact us today to discuss your matter further.

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Do I have to sell the house as part of the settlement or can I keep it?

This will largely depend on your ability to refinance the mortgage over the property into your name alone. You may also be required to obtain a further loan in order to “purchase” the other party’s interest in the property. Complications may arise if both parties wish to keep the home. In this case, a Court may need to determine the issue or the parties may then decide that the property should indeed be sold. You should seek independent financial advice in relation to refinancing your property and in relation to any tax implications for any investment properties.

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What if my relationship is just starting? Can I protect my assets?

Yes, you can. You should consider entering into a Binding Financial Agreement.

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Can I change the locks on the house if my partner leaves?

If your partner has left and has established a new place of residence, it is not unreasonable to say that you now have possession of the home. As such, your privacy should be respected and your partner should not be allowed to attend the home without your consent. If you are afraid for your safety, or your partner is coming into the house without your prior consent, then you should speak to us today to find out whether it is a good idea to change the locks, and what complications may arise.

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Can I claim spousal maintenance?

This will depend on your circumstances. You will need to provide us with your instructions in relation to both parties’ earning capacities as well as your spending needs. We can then assess your claim and provide our advices in relation to what you may be entitled to. For De facto couples, this option is only available if you separated after 19 March 2009.

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My partner’s Solicitors have drafted a Binding Financial Agreement. Can I come in and see you and have it signed straight away?

No. The laws surrounding Binding Financial Agreements (BFAs) are complex and the requirements placed on Solicitors are strict. As such, we are required to review the document in full and provide you with our detailed advices before you are able to sign the Agreement.

At OMB, we pride ourselves on our diligence and commitment to adhere to our obligations and duties to you as our client and under the law. As such, we will not cut corners or rush the process without following the appropriate procedures. To discuss your BFA further and the steps required, contact us on familylaw@omb.com.au.

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Contact our Family Law Team TODAY!