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Property Settlement

Four (4) Important Things to Consider When Negotiating Your Property Settlement

By | Wills & Estates
Whether we like it or not, there are times in life when we have to choose our battles. In other words, we have to decide whether it is worth arguing over the issue at hand. This decision is often a factor when separated or divorced couples try to reach agreements regarding the division of property.

The bottom line if you’re currently trying to reach a mutually acceptable property settlement is that you and your former partner must be willing to negotiate. This is not the time for either one of you to be stubborn or make unreasonable demands. Beyond that, here are four (4) important things to consider when negotiating your property settlement.

  1. Honesty is the best policy when identifying assets and liabilities

Australian family law mandates full and timely disclosure of all relevant financial information – including the assets and liabilities for inclusion in a property pool. Aside from the fact that the court doesn’t appreciate it when parties don’t comply, accidental or deliberate deception can have unpleasant consequences. Firstly, it may lead to heightened suspicion, scrutiny and tension between you and your former spouse, which makes a settlement less likely at mediation. Secondly, if you have not disclosed your entire property portfolio, it will open the case up at a later date for review.

If need be, don’t be afraid to consult qualified legal and financial professionals who can help you identify and value everything that should be included in the property pool.

  1. Compassion and consideration are important

It is understandable if you harbor resentment or anger towards your former partner or spouse – especially if violence or infidelity led to your separation. However, if it is at all possible, it is important to consider his or her immediate needs. This is because he or she may have legitimate concerns about making ends meet or finding a place to live in the short term. Agreeing to terms that address these needs will undeniably benefit you both in the long run.

  1. Be realistic when assessing your needs

It is also important to think things through when assessing your own needs in the context of a property settlement. Do you really need a greater portion of the total property than your former partner or spouse? Or are you just trying to get it out of malice, or spite? Then again, is splitting everything equally actually ‘fair’? Are you thinking about your immediate and long-term needs?

These are all valid questions because the reality is – assets rarely hold their value. Some will be worth more in the short term, less in the long run and vice versa. This means a successful property settlement isn’t necessarily one in which you ‘get’ more than your former spouse, but rather one in which you get the assets most compatible with your current and future financial needs.

Within this context, it may be helpful to start with an honest evaluation of your current situation, and your immediate and long-term goals. Again, it is perfectly okay to consult with a financial planner, accountant or similar financial professional if you don’t feel comfortable doing this on your own.

  1. Don’t let your emotions dictate the outcome

Even if you and your ex are still on relatively good terms, tempers may flare during property settlement negotiations. This may be due to lingering, unspoken resentment or something else altogether. In any case, heated emotions can and do kill negotiations. If that happens, you may be forced to turn to the courts – which can be extremely expensive and unpleasant.

Although it can be incredibly difficult, it’s essential that you try to keep your own emotions in check, and handle the property settlement negotiations the same way you’d handle any other significant business transaction. By putting your own feelings on the back burner, you can concentrate on maintaining a civil dialogue, pick up on any cues that the negotiations may be in jeopardy and act accordingly. Your lawyer should handle the situation without the emotion.

Finally, it’s important to remember that you know your former partner or spouse better than any outsider does. This means you shouldn’t feel compelled to begin or continue negotiations if you know the other person isn’t amenable to moving forward at the time. Doing so can easily backfire and, in a worst-case scenario, end the chance of having any constructive discussions at all.

Clearly, how you approach your property settlement will depend on the specific circumstances of your case, and these are just a few general pointers. For more information about reaching a property settlement, please feel free to send us an enquiry or contact us today.

Family Court

Can You Travel Overseas with Your Children While Proceedings are Underway in the Family Court?

By | Family Law

There’s nothing quite like a family holiday. For the children, it’s simply a chance to have fun.

For parents, it’s a chance to introduce the offspring to new people, places and things. It’s also a chance to create cherished family memories and traditions.

But when relationships sour to the point where family matters end up in court, traveling with the children can be complicated – especially if you want to take them abroad. Here’s what you should know about going overseas with the kids while Family Court matters are pending.

Obtaining consent

The first and most important thing to keep in mind in these circumstances is that you must get permission to travel overseas with the children. Ideally, all you’ll have to do is make your spouse, partner or applicable guardian aware of your plans and obtain their consent.

If that doesn’t work, there is another option. You can also apply for a court order allowing you to take the child/children abroad.  If you choose to pursue this option, you should be aware of potential court delays and act accordingly.  Ideally, you should make this application at least six weeks prior to your departure date.

What the court will consider

Along with an application, you must file a sworn statement called an affidavit. At a minimum, it should include information about:

  • The details and reason for the proposed travel, including a copy of the itinerary (if possible);
  • the ties you and the child/children have to Australia;
  • whether the country you are visiting with your child/children is a member of the Hague Convention, or if any travel warnings have been issued;
  • your immigration status and your child/children’s immigration status;
  • your willingness and ability to provide surety;
  • any other pertinent factors.

To make a decision, the Court takes several factors into consideration. The most important of these is the risk that you will not bring the child/children back to Australia.  Based on your specific situation, you may have to put up a cash bond that you will forfeit if you fail to bring the child/children back to Australia as ordered. Conversely, the Court will allow the child to accompany you if it determines it is in his or her best interests to do so.

Additional information about the security bond

If the court finds a security bond is necessary in your case, it will include relevant provisions in the order allowing you and your child/children to go abroad. These provisions generally include:

  • Terms of payment for a single trip: Namely, the length of time prior to the date of departure in which the bond must be paid and the funds cleared. Depending on the circumstances of your case, it may range from seven days to one month.
  • Terms of payment for multiple trips: If you are planning on taking your child/children overseas on multiple occasions, you may be required to put up a security bond payable each time the child travels, a certain amount of days prior to departure.
  • Restrictions on departure: Under some orders, the child or children will not be allowed to leave with you if you haven’t paid the bond.
  • The bond amount: Again, the exact amount will depend on your situation and the potential risk stemming from the proposed travel. However, it can generally range from $5,000 to $30,000.
  • The bond type: In most cases, a cash bond is required. However, a bond in the form of real estate may also be accepted in certain circumstances.

As per the court order, payment will be made to a trust account held by your lawyer or the non-traveling parent’s lawyer. In either case, the lawyer is legally prohibited from accessing these funds without appropriate authorisation. This means the money will remain in the trust account until the release of funds is authorised.

Provisions for release of bond

In addition to the provisions we’ve already mentioned, the court order issued in your case will include stipulations pertaining to the release of bond (if necessary).

These stipulations will determine when the money is released (a specific date) and where it goes. More often than not, it will be released upon the child’s return to Australia. However, you should be aware that these stipulations may also allow for some ‘wiggle room’ in circumstances such as late return due to unforeseen circumstances.

Depending on the relevant language in the provision, the money will be released to you (the traveling parent) if you bring the child or children back to Australia as ordered. If you fail to comply with the order, the non-traveling parent will get the bond money.

Under these stipulations, bond money released to a non-traveling parent due to your lack of compliance must generally be used to facilitate the child or children’s return to Australia.  This means it can only be used for travel costs, legal costs or any other relevant fees and costs incurred by the non-traveling parent while seeking the return of the child or children.

Don’t take any unnecessary risks

Finally, you should be aware that taking a child out of Australia or trying to do so without consent or a court order is a very serious offence. The punishment upon conviction is a maximum of three years in prison.

To find out how we can help if you have a pending Family Court matter and want to take your child or children overseas, contact us today.