When purchasing your property it is important that searches are carried out to check that the seller has met their disclosure obligations, that warranties in the contract are correct, and to obtain the information required to assist in your conveyance. It is important to ensure that all searches relevant to the purchase have been considered and that the appropriate searches are conducted at the correct stage of the conveyancing transaction.
Ideally, you should consider conducting searches in advance of signing your purchase contract or prior to the contract becoming unconditional to ensure the best understanding of the property you are signing up to purchase before being ‘locked in’ to settle.
Certain searches should be conducted at the start of your conveyance and others will be conducted over the course and at the end of the conveyance. Although it is ultimately your decision as to when to conduct the searches, we recommend you have us carry out searches as soon as possible so that you are aware of your legal obligations and rights before they possibly expire and are well informed of the condition of the property.
Common points to consider about your property purchase (although not limited to those listed) are the accuracy of the lot’s position, investigating the actual and surrounding location and whether there are any current or future developments planned, and investigating any illegal or incomplete building or extension works to ensure final approvals are in order.
You should speak to your solicitor to start to look at which search options are necessary for you and discuss any property concerns or inquiries you wish to make to ensure that the results will not affect your purchase and any current or future plans you have for the property.
As your solicitor, we will conduct all initial searches on your behalf and then carry out further searches during the course of the conveyance.
If you wish to obtain a copy of our Search Cost Matrix prior to signing your contract to start looking at which property investigations are available and recommended to be made then please contact Libby Dessaix at (07) 3236 0001 for a FREE complimentary copy of the Matrix relevant to the area your property is located in (applies for all suburbs located within Queensland).
Statistics show that in Australia at least one-third of relationships end in divorce or separation. Usually, we don’t find accurate information about property settlement after divorce or separation.
Different cases have different results. All cases are decided according to the given facts, and the result of each case is different.
Misconceptions about property settlement:
Each case of a property settlement after divorce has different results. We hear different wrong statements from our clients. Let’s have a look at the wrong divorce property settlement examples in Australia.
Everything is divided equally: People think that the property is divided equally among both parties. The truth is that there is no such rule. Also, there is no mathematical formula for dividing property. It is decided according to the given facts.
To get a property settlement you will have to go to court: This myth is also not true. There are only 5% of couples who have to visit the court. All other cases are resolved through mediation, or by a solicitor-to-solicitor negotiation. After they agree about dividing their assets, they write an application for consent orders and the court just approves the application. They don’t even have to go to court.
Can I apply for a property settlement if I was in a de facto relationship?
Recently there were no such rules for de facto relations.
But now Family Court and the Federal Court can make financial decisions for couples who were in a relationship.
How property is divided?
After divorcing in Australia property settlement is decided easily. But sometimes, you may have to visit the court. So, you must be prepared for it. Let’s know about the basic rules about divorce property settlement. The court does not have a formula for dividing the property. No one knows about the exact results of the case. The judicial officer will decide according to the given facts of your case.
The basic rules are the same whether you were in a marriage or a de facto relationship.
Working on the properties that you owe.
What was the contribution of each party to the marriage or de facto relationship? For instance their salary.
The court will also consider gifts and inheritances from each party or their families.
The court would like to know about the non-financial contribution of each party, for example caring for children or homemaking.
The court will look at future possibilities according to one’s health, financial status, custody of children, and whether he or she can have the ability to earn.
The division of assets will depend on your financial status. You may get more or less according to your condition.
What is the time limit for the application of property settlement?
Property settlement after divorce has a time limit. In case of a divorce you should for this application within 1 year of the divorce becoming final. If you were in a de facto relationship, it expands to two years after the breakdown of the relationship.
If you were not able to apply in the given you will have to get special permission from the court to apply this application.
Is it good to have a property settlement?
If your financial condition is not good then you should go for property settlement. But, the court has the authority to decide about property settlement. If the court finds that it is suitable to divide property then the court will not allow it.
It is all based on the given facts and circumstances. If the court decides not to allow property settlement then both parties will leave with the properties under their name and possession.
Explain the property pool:
In the property pool, all the assets and liabilities of both parties are included, it also includes assets in joint names. It can include a house, a townhouse, or a block of land. It can also be a business vehicle, motor vehicle, camper, boat, bank account, or shares, and nowadays bitcoin is also included. In liabilities loans like mortgage, personal loan, and business loan is added, also credit card, debt Australia is included in liabilities.
What about property sold after separation or divorce?
If a party sells one or more of its properties after divorce or separation, these properties are added back to the property pool. It is good to negotiate with the other person before taking such a step. The same procedure should apply if you purchase a new property.
How will financial agreements help?
These agreements are just like contracts. In these agreements, parties decide how they want to divide the property. The couples in a marriage or de facto relationship candy go for financial agreement. You can make these agreements before, during, or after your marriage.
If you are thinking of making such agreements then you should understand the terms and conditions of the agreement. Before signing the agreement you should receive legal advice. This agreement can save a lot of time. The property settlement after divorce gets easier if you have such an agreement.
How can Mackay family lawyers help?
At Mackay family lawyers we have the most experienced lawyers for divorce property settlement. We can deal with all kinds of property issues. We have made many satisfied clients. We can help you get your truth right.
A few more questions:
Here are some commonly asked questions about property settlement after divorce.
How divorce property settlement is decided?
The easy solution to this problem is that you should decide how to divide property by discussion. But most couples don’t agree with this solution so you will have to go to court. In court, the judge will decide according to the stats provided by both parties. The decision changes according to one’s financial status.
How can I apply for divorce property settlement after the deadline?
You will have to tell the court about the cause of the delay. You must show them that your life or the life of the child will get harder if the court does not allow you to proceed.
What is meant by Binding Financial Agreement?
The Family Law Act allows couples in a marriage or in a de facto relationship to agree to property settlement if their relationship breaks down. This agreement is called the Binding Financial Agreement. In this agreement, the court is not involved in any kind of property matters. The court is involved if this agreement is terminated by the parties.
People might ask “what is spousal maintenance?”, the answer is quite simple: it is financial assistance given by one ex-partner to the other if they are financially unstable. Spousal maintenance in Australia can also be paid by lump sum in lieu of spousal assets to be shared, such as boats or cars.
There are two types of spousal maintenance, the Family court and the Federal court deals with them.
Spouse maintenance: One person gives this financial support to his or her former husband/wife. Their previous partner gives them financial assistance.
De facto partner maintenance: If a couple is no longer in the de facto relationship, then one may give financial assistance to other partners.
The family law Act 1975 states that a person is responsible for assisting the former de facto partner financially if he cannot meet his expenses. https://www.legislation.gov.au/Details/C2019C00182
What are the Critical Factors in the Court’s Decisions:
Before making a decision, the court checks the applicant’s needs and the financial stability of the respondent. The following are essential factors for both persons:
Age and health
Yearly income, current property, and financial resources
Can the applicant work?
Standard of living
Has the marriage affected your financial status?
Are they supporting any other person?
Do any of the parties have social security benefits?
How much one has contributed to the financial state of the other.
How much has the relationship affected the earnings of the applicant?
Are there any possibilities for child support payment?
Do the parties have any financial agreements between them?
You can see section 75(2) (married) and for de facto check 90SF (de facto) to know more.
Can I have Spouse Maintenance if I was in a De facto Relationship?
If you were in a de facto relationship, and now you want to apply for spouse maintenance then give read to De facto property regime page it is on the Attorney-General’s website. You will know whether you are eligible for spousal support or not.
The law is different for people living in Western Australia. You should visit the website of the Family court of Western Australia.
(Source: https://www.familycourt.wa.gov.au/)
What is the Procedure for Spousal Maintenance?
It is good to have an agreement with your spouse before applying for spousal maintenance
. If there is no agreement, then you can use the Federal Circuit Court. You will have to submit your income and expenses details in a financial statement when applying. The spouse will follow the procedure.
If there is an urgent need for financial assistance, then the court may order immediate payment.
Spousal Maintenance in Australia: Calculator
Every applicant has a question in mind “How much is spousal maintenance?”. Well, there is no fixed amount, but the court follows a procedure. We have tried to explain it below.
The court will check the financial condition of the applicant and the capacity of the spousal, after that the court will make a judgment about the payable amount. There is no formula for calculating spousal maintenance.
The court assumes the day-to-day expenses of the applicant and the respondent, and then it will be decided whether to pay the spousal support or not if it is payable then how much?
If the applicant is responsible for taking care of the child or children below the school age, then the court will not ask you to work as the children will need full attention. But, once the children reach school age, you will need to work unless you do not have some other responsibilities.
Will I receive Spousal Maintenance if I am in a New Relationship?
If you marry a new person, then you will not get spousal maintenance, unless ordered by the court. See section 82 for more information. (Source: https://www.legislation.gov.au/Details/C2019C00182)
If you are in a new de facto relationship, then the court will consider your financial status and of your new partner and will make an original decision according to that.
When should I Apply?
The deadline for applying is different for both conditions. Suppose you were married and had a divorce. Then you should apply within 12 months from the date of the separation. In the case of a de facto relationship
, there are two years for use.
If you are unable to apply within time, you can have special permission from the court for use even after that time. But, you will not get this chance if you don’t have a valid reason for the late submission of the application.
Do I need to have a Lawyer for Spousal Maintenance?
You should contact experienced family lawyers when applying for spousal maintenance.
There are many essential factors in a spousal order. Every case is different, and the conditions vary from person to person. The payable amount changes from case to case. It would help if you considered experienced family lawyers to understand your situation.
If you are looking for spousal maintenance QLD, then Mackay family lawyers are your choice.
With the help of our lawyers, we can get you spousal maintenance in Australia.
Conclusion:
Spousal maintenance is a part of property settlement in addition to child support. It is paid for a limited time until the other party is stable to afford the expenses. In some cases, it can be permanent. We can help you to get spousal maintenance.
Electronic Conveyancing (E-conveyancing) allows for an “electronic” settlement of a conveyancing transaction through an online exchange known as PEXA. The system will operate across Australia and is supported by legislation in Queensland.
The system does not cover all aspects of the conveyancing process but does allow for the preparation and signing of documents and their lodgement in the Land Titles Office as well as the completion of financial transactions involved in a conveyance (such as settlement money transfer and transfer duty payment) to occur electronically. Traditionally, each of these steps is handled by a paper process where printed documents would be signed by parties, and documents and cheques for settlement funds are physically exchanged at settlement.
The main advantage of an electronic settlement process is efficiency. Not only does the process make it unnecessary to attend a physical settlement for the exchange of documents and funds, when the exchange occurs, cleared funds are credited to the recipient’s account within a very short time. This has particular benefits for a Seller who will not be required to wait for cheque clearing procedures following a settlement.
When Can Electronic Conveyancing (E-Conveyancing) be Used?
The electronic settlement process cannot be used for all conveyancing transactions and can also only be used if all parties agree to it. The process is only available to financial institutions, and parties who engage a legal practitioner.
In our First Letter, we will tell you whether the Contract makes provision for Electronic Conveyancing (e-conveyancing) to be used for settlement. Even if it does, the use of e-conveyancing for settlement will likely depend on the agreement of all parties (including financiers) to do so.
Client Authorisation and Verification of Identity
We require your authority to use e-conveyancing for the settlement of the transaction. That authority must be provided in the form of a Client Authorisation. A separate authorisation form must be signed by each Buyer. If Electronic Conveyancing (e-conveyancing) is to be used, we will contact you closer to settlement to discuss arrangements for the signing of a Client Authorisation.
As a Client Authorisation allows us to undertake the settlement of the transaction on your behalf (and to sign documents for you), we are required to undertake a prescribed process to verify your identity. This will require you to attend our office for a face-to-face meeting where you will need to produce identity documents and sign the Client Authorisation. If a face-to-face meeting is not possible, an agent can undertake the verification of the identity process.
Risks of Using Electronic Conveyancing (E-Conveyancing)
Although the system may have advantages for the parties in relation to the efficiency of arranging settlement and the transfer of funds, a party contemplating the use of e-conveyancing should be aware of the following risks:
The electronic settlement may be delayed by system failures. If e-conveyancing is proposed, it will be important to consider
How the Contract deals with the issue of system failure to ensure that your rights are not adversely affected because a relevant computer system is inoperative.
A party to a transaction may, after having previously agreed to use the system, elect to withdraw from it. Once again, it will be important to consider how the Contract deals with this issue. For example, if the Contract does allow parties to withdraw from the system, the parties may still need to prepare for a traditional (paper-based) settlement process to ensure that the other party is still able to satisfy its settlement obligations on time. Having to prepare for both methods of settlement may erode any efficiencies and costs savings and even add to the work involved.
One of the main advantages of an electronic settlement is the transfer of funds to the recipients of the settlement proceeds within a very short time. This will include not only the Seller and the Seller’s financial institution but also authorities to whom money is paid to discharge an outgoing. Any arrangement that involves the transfer of funds to a nominated bank account carries with it the risk that an error may result in funds being credited to the wrong account. The speedy transfer of funds may make any wrongfully transferred funds more difficult to track or recover.
A traditional settlement involves a physical exchange of documents and funds (provided by bank cheques) and, generally speaking, at any time until that exchange has taken place a party may refuse to settle. An electronic settlement will require the respective parties to commit themselves to settlement at an agreed time (when the electronic workspace for the transaction will lock). Unlike a traditional settlement where settlement may be aborted until final exchange, the parties will not be able to abort the settlement after the workspace locks and the settlement process has commenced. In limited circumstances, this may mean you discover issues with the Property and, while the Contract has not settled, you may be unable to exercise any rights.
If you have any questions about how e-conveyancing works or whether it may be used for your transaction, Please contact us to discuss them.
The use of Email in particular has become a common practice for parties to electronic communication. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?
The Electronic Transactions Act (Qld) 2001 provides that you must keep, in electronic form –
The origin of the e-communications;
The destination of the e-communications;
When the e-communication was sent;
When the e-communication was received.
We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.
The time of receipt of the electronic communication is the time the e-communications becomes capable of being retrieved by the addressee (that is the recipient) at an electronic address designated by the addressee; or
The time of receipt of the electronic communication at another electronic address of the addressee is the time when both – The electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.
For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.
