It is common that only one party’s name is registered on the title of a property. Even if this is the case, this property will form part of the property pool in the settlement. However, an experienced Family Lawyer will always advise client to immediately lodge a caveat to protect their interest of the property that where the registered property owner cannot sell the property or obtain a mortgage, refinance or get equity out of the property.
A caveat may be lodged on the relevant property, which flags your equitable interest despite not being listed on the title. However, caveats are not a permanent solution, rather they are generally used temporarily to protect your rights on the property throughout the settlement negotiations.
Superannuation monies is considered as property between the parties under the Family Law Act 1975.
Court orders can be made for splitting superannuation interests, or alternatively the parties will enter into a superannuation agreement. The split will be achieved by a percentage or by a defined base amount.
Superannuation provisions may also be included in financial agreements between parties. A split of superannuation in financial agreements may be by percentage, a defined base amount, or by a method of calculating the base amount.
It is highly recommended that all steps be taken to settle property settlement matters without proceeding to the Court process. Majority of cases are settled by pre-action procedures.
In order to fairly settle the matter, full and frank disclosure must be made by both parties regarding your assets and liabilities. Using this information, negotiations will commence between the parties in the interest of settling the matter outside of Court by entering into an agreement. If an agreement cannot be reached in the negotiation stage, then you will be directed to alternative dispute resolution where a mediator or conciliator will facilitate discussion to reach an agreement between you and your partner.
Proceeding to Court is costly and time consuming, so it is best to seek legal advice so your legal practitioner may negotiate on your behalf to reach a fair and final property settlement.
Process to commence proceedings:
If settlement has been reached and orders have been granted, both parties must adhere to the orders made. It is always advisable to include provisions in the property settlement order in the event one party defaults or breaches the orders.
If your former partner is not obliging, then you may make an application to the Court for the enforcement of orders. As such, an Application in a Case will need to be filed accompanied by an Affidavit in Support. This process will state that all attempts have been made to get the other party to the order to oblige without success. If satisfied, the Court may order property be transferred to the other party on trust for sale, payment of a sum of money, interest on unpaid and owed money, and costs.
If your former partner is not obliging to the orders, you may also seek a sanction for their breach. An Application – Contravention will need to be initiated through the Court. This application may be granted if your former partner acted intentionally or made no attempts to comply with the order.