Five Myths of Divorce and Separation.

We often hear that individuals know what to expect because a friend, a colleague or a family member went through a separation. More often than not, the advice they have been given is incorrect or misleading. Here, the major focus is on five myths of divorce and separation.

Every family law matter is different, and it is important that people facing such a situation seek specialist advice to enable them to make informed decisions in the future. Separation is confusing enough as it is without incorrect and misleading information from others.

MYTH #1 – All relationships end in a 50/50 property division

THE REALITY

There is no universal equation that is applied in a property division. Property can be divided according to a number of factors. These include:Family Law Property settlement

  • The length of the relationship
  • The financial (direct or indirect) contributions of both parties
  • The non-financial contributions of both parties – homemaker and carer roles
  • The current and future needs of both parties – age and health of each individual

Because there are so many different factors to consider, the reality is that a 50/50 property division is actually rare.

MYTH #2 – You have to be divorced to do a property settlement

THE REALITY

You do not have to be divorced to do a property settlement. However, there are time limits depending on whether the settlement is for a de facto relationship or a marriage.

Time Limits:

  • Marriage: 12 months from the date the divorce order takes effect
  • Defacto: 2 years from the date of separation

Once a divorce order is made, there is a 12-month time limit for you to commence proceedings for a property settlement. The 12-month time limit starts from the date the divorce order comes into effect.

In the case of de facto couples, the time limit to commence property proceedings is two years from the date of separation.

If you do not commence proceedings within these time frames, you will need to seek permission from the court to commence proceedings. It is the Court’s discretion as to whether they grant permission or not and they will only do so in limited circumstances.

MYTH #3 – Assets within companies, trusts and superannuation funds are excluded from a property settlement

THE REALITY

The definition of property in Family Law is wide. The important word is control.

The property includes all assets that the parties have a legal or equitable interest in, whether in their sole name, joint names or with a third party.

Superannuation comes into this definition and can be split so that some of it is given to the other spouse.

The issue of whether trust and/or companies are included in that definition can be quite a technical area. It is wrong for people to think it is possible or even easy for a party to hide assets by registering in the name of the company or a trust. Just because it is not in your name does not mean it does not form part of the asset pool available for division.

The issue comes down to whether a party has control of the assets. An indicator of control is whether a party can decide what happens to those assets or whether they can appoint or remove trustee/s and beneficiaries.

MYTH #4 – All family disputes involving lawyers go to court  

Binding AgreementTHE REALITY

  • If settlement or agreement is the primary goal, then this can be established without the need to go to court as long as both parties can come to an agreement
  • The court should be seen as a last resort

Where possible, resolution through mediation or by negotiations with the other party should be made, thereby saving both parties in legal fees and time and allowing each to move on with their lives.  However, sometimes where further negotiations or mediation will not advance the matter in any substantial way, commencing court proceedings will be necessary to come to a resolution of the matter.

MYTH #5 – If you have agreed on a property division, you must involve lawyers

THE REALITY

There are ways to formalise an agreement that doesn’t necessarily involve lawyers. It is possible to do this with either of the following:

  1. Consent Orders
  2. Binding Financial Agreement

Consent Order means that the court has considered and formalised the agreement. Consent Orders can be done without lawyers.  However, we would strongly urge you to have a lawyer specialising in family law check over the documents to make sure they have been drafted correctly. This is particularly important in relation to transfer of property otherwise you risk incurring stamp duty and/or losing other advantages of formalising the agreement.

A Binding Financial Agreement effectively is a contract between the two estranged spouses. For this sort of agreement, you must involve lawyers for it to be enforceable. Independent legal advice must be obtained by each party and the lawyer must sign off on the agreement otherwise, to put it frankly, it is not worth the paper it is written on.

If you are going through a divorce or separation, and need help with any of the above, please contact Cornerstone Law Offices by on phone: 1300 267 637 or by email at info@cornerstonelawoffices.com.au

or Fill in the form below:

    Hiding Assets in Family Law Disputes

    You may have heard someone say the line before, or maybe you have even thought to yourself – “I’ll just sell the ‘asset’ to my brother/mother/mate for a dollar”. This is quite possibly one of the most dangerous attitudes a party can have in a property settlement dispute and one of the strongest points to attack the credibility of a party that attempts to hide assets in this way. This blog will state the pitfalls of hiding assets in family law property disputes.

    Alternatively, you may be aware of an asset that existed during your relationship that the other party now says no longer exists but have not explained what happened to it.

    The reasons this attitude can be so harmful to a person’s case are: –

    • Upon producing evidence of the true value of the particular asset, the Court can treat the transaction as a deliberate attempt to defeat the other party’s legitimate claim; and
    • The Judge can become reluctant to believe your evidence on other points of your case if not corroborated by some independent source.

    Immediate Consequences

    If discovered during a proceeding, the Court has a wide range of powers to deal with these types of transactions, including: –

    • Dismissing all or part of the guilty party’s case;
    • Ordering the guilty party to pay a portion of the other party’s costs;
    • Restraining the guilty party from relying on any undisclosed information or document as evidence in their case;
    • Imposing a fine; or
    • Sentencing the non-disclosing party to imprisonment for contempt of Court in extraordinary cases.

    Future Consequences

    If evidence of the non-disclosure or adverse dealing is discovered after final orders have been made in a property dispute, there will be grounds to seek that those final orders are set aside and new orders made. In addition to the penalties that might be imposed listed above, further orders could be made granting a higher entitlement to the net assets of the relationship to the innocent party and that their legal costs be paid by the guilty party.

    Finding the Evidence

    The obligation of full and frank disclosure that all parties to family law matters have goes a long way to assist in discovering whether a party has disposed of assets or is otherwise hiding assets in some way. The documents parties are obligated to provide include:

    • Bank Statements for all accounts in either party’s name for the last 12 months;
    • Superannuation Statements for all super funds either party has;
    • 3 most recent Tax Returns and Pay Slips;
    • Any valuation reports either party has obtained;
    • Insurance Policies Statements;
    • Share Certificates/stock market portfolios;
    • Trust Deeds;
    • Business, Partnership or Company documents;
    • Title Deeds and Leases of Property.

    In some cases, this has also extended to legal advice concerning a range of entitlements, medical reports and settlement offer where either party is making or has made a personal injuries claim.

    Other methods of gathering evidence include calling particular witnesses to give evidence and be cross-examined at a hearing, issuing a subpoena to produce documents or conducting online searches through various property registers or ownership searches.

    Need help with a family law dispute or want to discuss asset settlement?

       

      What is a property settlement and can you get it done before your divorce?

      If you are separated and heading for divorce, consider finalising your property settlement as soon as possible to secure the best outcome for your future.

      What is property?

      Property refers to all your assets, financial resources, superannuation and liabilities. The Family Law Act defines property as being the ‘net asset pool’ which can include:

      • matrimonial home
      • investment properties
      • bank accounts
      • family Trusts
      • jointly owned assets
      • superannuation
      • shares/interests in a business or companies
      • cars and/or any other vehicles
      • debts

      Why is it better to finalise your property settlement before you divorce?

      In Australia, you cannot file an application for divorce unless you have been separated for 12 months. However, you can commence and/or finalise a property settlement at any time after you separate.

      We strongly recommend people finalise their property settlement as soon as possible after separation and before getting a divorce order. This is because your assets at the date of settlement or trial are what is taken into consideration rather than your assets at the date you separate.

      Because it is likely each party will continue with their lives after separation and in doing so, may buy or sell assets, unless there has been a property settlement, these transactions will affect both parties even though the couple is separated.

      Are married and de facto relationships treated the same?

      If you are married, you must apply for a property settlement within a year of a divorce order becoming final. A divorce order becomes final one month and one day after the date on which the order was made.

      If you are in a de facto relationship, you must apply to the court for your property settlement within two years from the date of separation.

      Failure to commence proceedings in the court within these timeframes means you will need to seek permission from the court to commence proceedings out of time. It is at the court’s discretion as to whether or not they grant permission and they will only do so in limited circumstances.

      How is property settlement done?

      When the court is deciding on a just and equitable division of the relationship property, each case is treated as unique. The court will consider the contributions each person has made to the relationship (both financial and non-financial), together with each person’s future needs.

      Both parties will need to disclose all of their assets and the court has the discretion to split any of the property even if it’s under one party’s name. The factors the court considers when deciding are:

      • future financial needs of each party
      • earning capacity of each party
      • whether they have children and who cares for them
      • age
      • health
      • any other special circumstances
      • whether the division would be practical and in the party’s interests.

      How is a property settlement finalised?

      Property settlement can be finalised either by:

      1. an application for consent orders (which is filed in the Family Court) and orders are made by the court
      2. a binding financial agreement (which is not filed in court).
      Related articles DOMESTIC VIOLENCE IN AUSTRALIAWhat will happen to my pet after separation?

      Cornerstone Law Offices can help you understand your entitlements, negotiate property settlement with your former spouse or partner, and obtain a just and equitable outcome. Call us on 1300 267 637 or fill in the form below.

        5 Tips to Start a Prenup Discussion with your Partner

        5 tips to start Prenup discussion with your Partner

        While no one wants to think of separation when they are in a loving relationship, the reality is that many marriages and relationships end in separation or divorce.  It is important to take into consideration and plan for what would happen if the worst came to eventuate. 

        How? By a Prenuptial Agreement (“prenup”), otherwise known as a Financial Agreement. This is a legal document which outlines how you and your partner agree for assets to be handled during the relationship and in the event of a separation. Prenups are becoming more and more common and can be an invaluable tool in the future to protect both you and your partner 

        A prenup can benefit both parties, provide certainty to you both in the future, clarify needs and expectations, foster Prenup Conversationcommunication between you both and can even make your relationship stronger.

        Below are some tips and strategies on how to approach the difficult topic with your partner and to help a potentially awkward and problematic conversation go as smoothly as possible.  

        1.Timing of the conversation:

        Like any important conversation, the timing of when you introduce and discuss the topic can be critical. Find the right time when you are both relaxedcomfortablein positive mind frame and have some private time together to discuss the future. Do not bring up the conversation if either of you is tired, stressed or there is tension between you already, as this may lead to fighting or further tension 

        It is also important that the conversation is brought up and the document itself signed well before wedding dates/ commitment ceremonies or any other related events including sending out wedding invitations. This is because agreements can be set aside if one party proves they were pressured, coerced, or forced to enter into a prenup.  

        When you find the right time, remember that you are introducing the topic as a conversation and NOT a demand.  You are not forcing them to do anything, nor are you dictating all the terms of the prenup to them. 

        2. Work the topic into a broader conversation:

        It can be helpful to bring up the conversation of a prenup within the context of a broader discussion about your finances, estate planning and your future plans as a couple.   

        Discussing Prenup

        You can also bring up the conversation in the context of expressing your intention to commit and have a long loving relationship with them. If that wasn’t your intention then there would be no need for the document.  It is merely a safeguard like estate planning, your Will and life insurance. You do not plan on these things happening or having to se

        e the documents again after they have been signed, but it’s still important to have those documents in place if the worst happens.  

        3. Be clear and straightforward – explain why you want a prenup 

        You are going to have to be prepared and ready to explain your understanding of what a prenup iswhy you want one and what you are trying to achieve by having one in place.  

        For example, you may have had a previous separation and gone through an ugly property settlement, you 

        may want to have peace of mind as to what will happen in the future, or want to protect family inheritance and assets that have been in the family for generations or it may just be a part of your estate plan and on advice from your financial advisors/ lawyer.  

        Highlight to your partner that if you did ever separate, this document could potentially save you both significant stress, money and time in the future.  It also allows you to make decisions as a couple rather than fighting about it through the court system and having a third party (the court) decide what happens to each of your assets and who keeps what.

        4. Listen to your partner and reassure them 

        Naturally, your partner may have a negative reaction.  Many people do not know what the document is and base their understanding of American movies, which show prenups as unromantic, mistrusting, cold and/or controlling, which is not necessarily the caseAllow your partner to have their natural reactionstime to process and empathise with their reaction and views. If you expect them to understand your viewpoint, you, in turn, need to understand and empathise with their viewpoint.

        Allow time to explore your partner’s feelings and thoughts about the topic.  They are likely to ask a lot of questions, so be forthcoming with answers and, as stated above, be clear and straight forward with them.  

        Ask your partner what their understanding of a prenup is. They may not know that both people can benefit from such a document. It can provide security and certainty with respect to future financial support.  They may not understand that the agreement can benefit them also. Outline those benefits to them and encourage them to do their own research on prenups or talk to a lawyer about what it is.  

        5. Be collaborative  

        The conversation will be much easier if you work collaboratively together to navigate any differences you have about the prenup.  Reassure them that the document is not one-sided, it exists to reflect both of your concerns. It is a consensual agreement that can be negotiated between you both. Ask them what terms would be important for them to be included in the agreement and be open to their suggestions to accommodate both of your needs.  

        Selling a property after separationInheritance and Property Settlement During DivorceWhat is a Binding Financial Agreement and when can it be challenged?

        Need help? Fill in the form and one of our team members will get in touch with you.

          Selling property after a separation.

          Divorce and Family Law A separation or divorce can be one of the toughest things a person will face during their life. There is a lot to think about; where will you live, who gets what, who will the children and pets live with etc. Here are the things to keep in mind when selling a property after separation.
          One thing that can be particularly time-consuming and difficult to deal with in the sale of a property. How you proceed with selling the property after separation will come down to the relationship itself, how the parties are coping with each other and what they each want to do with the property.  

          There are two ways property is sold:

          1. Through agreement and negotiation of both owners, or 
          2. via court orders. 

          As you can expect, if you are in agreement with respect to selling the property, it is a lot easier than proceeding with option and seeking court orders to sell it. 

          Most people need to settle a property sale as soon as possible once they separate, as either one or both parties need to move out and find new accommodation. This is not easy to do if you are still paying a mortgageThere are many things to keep in mind, even if you have both agreed to sell the house. As we know in all relationships, each person has strengths and weaknesses and more often than not, there is one party who is better at handling matters like this and making quick decisions.  

          During the sale of a house, there are a few very important things that need to happen for a seller:

          1. Both parties need to give instructions to their solicitor. When dealing with a separation matter, your solicitor is unable to negotiate or act on your instructions until the same instructions are received from both parties. Remember, as you are both owners of the selling property, you are both considered that solicitor’s clients.  
          2. Some of the things you may need to sign include a Discharge of Mortgage if you have any mortgages over the property, Transfer documents to allow the property to be legally transferred into your name at settlement, Client Documents which is the initially written questionnaire and accompanying documents your solicitor will give you.
          3. Both parties will need to agree with the figures. This is where it can get particularly tricky.Family Law Property settlement

          Many separated couples struggle to agree on figures if a purchaser requests a reduction under a condition of the contract, most commonly the building and pest condition. Until both parties agree on the reduction, they are willing to give, no negotiations can be entered into with the buyer. 

          Some people also struggle on the split of funds at settlement. Someone may have paid off more of the mortgage during the relationship, someone may have put a lump sum into it, someone may have paid for renovations, someone’s parents may have gifted them the deposit, and the possibilities go on and on. 

          At the beginning of the matter, your solicitor will ask you if you have agreed on how the funds will be split at settlement. If you have not by that time, they will let you know you need to before settlement. When it comes close to a settlement, you will be given a statement showing how all adjustments (rates, water, mortgage discharges, reductions etc.) have been accounted for. They will detail cheques required to pay off their fees, any outstanding bills, any commission to your real estate agent, any payout figure to your bank. Most of the time there will be a lump sum left over – which you both, as the clients, need to instruct your solicitor on the agreed split of those monies.

          If you are unable to provide agreed on instructions on the way this will be split; your solicitor will have no choice but to retain all the excess funds from the settlement in their trust account until you can agree. This is generally when the parties will be instructed to take the matter further to obtain a court order for the way these funds will be split.

          Property SettlementShould parties not agree on the split of funds or one party refuses to give instructions or sign documents, your solicitor will then require that one party seeks independent representation in settlement of the contract or recommend you apply for orders to force the sale/detail the split of funds. Court orders (option 2 above) take time to be put in place, especially during the COVID-19 Pandemic. The courts are extremely busy, and it may take you many months to obtain a Judgment as to how the funds will be split at settlement.  

          Court orders can also be sought at the very beginning of the matter if one party does not want to sell the property. Please note the time it will take to obtain a Judgment and the cost of seeking the orders from the court.  

          As you can see, while it can be a very hard thing to deal with, especially when going through a separation, it is in everyone’s best interest to agree with selling the property and how the funds will be split, before you proceed to sell the property. 

          Each separation is different, and each party needs to do what is right for themselves in that situation. However, if you do need to sell a property following a separation, please keep in mind the above pitfalls and potential traps you may encounter so you are prepared for what may come.  

          Related articles What will happen to my pet after separation?Inheritance and Property Settlement During Divorce .

          Talk to your Family Lawyer now

            What will happen to my pet after separation?

            Every couple who are about to get separated will have this question “what will happen to their pets after separation?Family Law Property settlement

            Pets are your bundle of joy and a valued member of your family. They deserve to be cared for with love and respect.  When separation occurs, it can be a difficult time and even more difficult when there is disagreement as to what will happen with your pet’s future care and living arrangements.

            How does the court deal with pets in Family Law 

            Family Law is generally broken into two sections – Parenting and Property. The Family Law Act does not have specific provisions to deal with pets.  As a result, there is no clear or determinative way as to how the Court treats petsBut generally, the ownership of pets after separation falls under property and unfortunately, they are usually treated similar to inanimate objects such as chattels, furniture and white goods.

            Depending on the circumstances, and whether there are children involved in the matter, there is generally no possibility for shared ownership of the pets following separation since ownership goes solely to one person to finalise their financial relationship once and for all.  It may be the case that market value is attributed to the animal (which is inconsistent with the emotional value of the animal), and it forms part of the asset pool available for division. The person who keeps the animal then compensates the other for the value of the animal in consideration of the whole asset pool, including superannuation and the other assets, liabilities, and financial resources they are retaining. 

            While pets are considered property, the Court does acknowledge the comforting nature of pets. In many cases involving a child/ children, the Court will decide to make orders that the pet accompanies the child or children in moving between the parents’ homes 

            What factors does the Court consider?  
            1. If the pet is registered with the council, under whose name the pet is registered.
            2. Who is registered on the pet’s microchip.
            3. When the animal was purchased (before, during and after separation) and who paid for the purchase of the pet;
            4. Who the pet resided with before, during and after separation;  
            5. Who paid the bills for the pet (e.g. training, vet bills, food, etc.). 
            6. Who was the main caregiver of the pet.  
            7. With whom the pet has an emotional bond. 
            8. If there are children, the children’s bond with the animal and who the children live with. 
            9. Each of your living circumstances and whether it is suitable for the pet (e.g. pet-friendly, large backyard, fenced, etc.).  
            10. Any other relevant matters involving the pet’s care.   

            What are youoptions?  

            1.Negotiate directly with your former spouse/partner  

            Instead of leaving the decisions relating to your pet’s future arrangements to be determined by the Court, it is best to try and amicably negotiate directly between yourselves because you both know the pet the best and each of your circumstances If you are unable to negotiate directly between yourselves, you can consider attending mediation. With the help of an independent third party to assist you in reaching an agreement to decide who the pet lives withthe time the pet will spend with the other party and who pays for the pet’s expenses etc. You can maintain control over the outcome that works for both of you and is in the pet’s best interests.

            2. Consent Orders or Binding Financial Agreement which includes provisions for your pet

            If you can reach an agreement with your former spouse/partner, it is important to understand that the agreement is not legally enforceable. Until the agreement is formalised, it is only a reflection of your intentions.   For a legally enforceable agreement, you and your former spouse need to formalise the agreement by way of: Binding Agreement

            a)    Consent Orders; or b)    Binding Financial Agreement.                                                                                                                                                                   These documents cover property settlement matters but can also include provisions for your pet which will be considered as part of your property settlement.    

            3.Make an application for property orders in Court which includes your pet

            If you have exhausted all options, including negotiation and mediation with your former spouse, you can make an Application for Property Settlement Matters with the Court, which includes seeking specific orders for your pet.  If you take this option, you will need to consider the associated legal expenses to pursue ownership of the pet, with no guaranteed outcome at the end given the Court’s unclear way of dealing with such issues. It is also important to understand that the courts are often reluctant to deal with issues relating to pets. As is often the case with other chattels, such as furnishings and white goods, possession can often be a determinative factor of the issue.

            If we can assist you or provide you with further information relating to your pet and your unique circumstances, please do not hesitate to contact our office. Talk to us and let one of our family lawyers guide you in reaching an agreement best for your valued family member.   

            Related articles Inheritance and Property Settlement During DivorceWhat is a property settlement and can you get it done before your divorce?

             

              Pitfalls to avoid when buying or selling a house

              Whether you are a buyer or a seller, a first-home buyer, an investor, or a seasoned household owner, there are many mistakes that people make in conveyancing.  Here are a few of the most common mistakes:

              • using incorrect spelling or informal names on the contract
              • failing to meet contract deadlines
              • failing to obtain searches (as a buyer)
              • failing to include chattels/fixtures in the contract.

              Incorrect spelling or use of informal names

              For an agent:

              • When drafting a contract, ensure you write down both the seller’s and buyer’s names correctly. Obtain copies of all parties’ government-issued identification (drivers’ licence) so you can check.
              • Ensure you have a copy of the title search for the property you are selling as this will ensure you have recorded the seller’s name exactly as it is depicted on title.
              • Make sure you include all parties to the settlement i.e. multiple buyers must all be correctly listed.

              For a buyer or seller:

              • Check that the contract has your name spelt correctly.
              • If you have a middle name, use it.
              • If your name is spelt incorrectly, change it.

              Repercussions:

              As a buyer or seller, if your name is spelt incorrectly on a contract and you proceed with the contract, your conveyancer will need to have this amended. This can incur extra costs with some fixed-fee conveyancing agreements.

              If the buyer’s name is spelt in correctly in a contract and they are obtaining finance, the financier will require the contract to be amended to ensure the name is listed correctly on the contract. Depending on how long both parties take to agree to amend the contract, your finance could be delayed by weeks as a financier cannot progress a loan agreement until the application matches what’s on the contract.

              If your incorrect name happens to slip past all these parties, the property will be transferred into the name of the person on the contract. This will not be your legal name and can have significant impacts on your estate should something happen to you. To change a name once it is registered on title, an application to amend needs to be lodged with the Queensland Titles Office. This will incur further costs and can take months to be amended.

              The rule is simple: spell check before you sign.

              Contract deadlines

              The most common deadlines or dates in a residential contract of sale are:

              • cooling off
              • finance
              • building and Pest
              • special conditions
              • settlement.

              On a standard Real Estate Institute Queensland (REIQ) contract, most of these conditions have a date within which they need to be met. This can be a certain number of days from the contract date (i.e. 14 days from contract) or have a specific date listed (i.e. 11 July 2019). A settlement date can be written in a few different ways which can be confusing to the parties of the sale.

              Cooling off
              A cooling-off period is automatically built into all REIQ residential sale contracts. You will find the disclaimer just above the execution panel on your contract. This disclaimer advises that you as a buyer have five business days, following the execution of your contract, to pull out of the contract for any reason.

              A termination penalty of 0.25% of the purchase price is required to be paid by the buyer should they pull out under this condition. This is included as a protection for the seller to prevent people signing contracts and pulling out for no reason.

              The cooling-off period does not apply to the seller. Once a seller signs the contract, they cannot terminate unless the purchaser is delayed in satisfying one of its conditions detailed under the contract.

              Finance, building and pest, and special conditions
              The date each of these conditions must be met will be listed on the contract. The most common timing for these conditions is 14 days from the contract date. Buyers should be proactive and start applications to ensure these conditions are satisfied within the specified timeframes.

              A finance application with a general bank will take a minimum of seven days to be conditionally approved. However, they can take anywhere between 14 to 21 days to give formal approval. When you start looking to purchase a property, go to your financier or mortgage broker and get conditional approval. Once you are conditionally approved, the formal approval is much easier to obtain and you can become conditionally approved without a contract. The financier will advise you of the maximum amount you are conditionally approved for and you can proceed to look at purchasing houses for that amount and under.

              In order to satisfy a finance condition, you need to provide your conveyancer with the following:

              • a copy of the formal approval letter you received from your financier
              • written advice (an email) from you advising you are happy with the offer from that financier and wish to satisfy this condition in the contract.

              Your conveyancer must obtain these instructions from you in order to satisfy this condition.

              Depending on the size of the property you are purchasing, a building and pest inspection generally takes between one and two hours to complete. Once you sign a contract, you need to call around to obtain quotes and book an inspection as soon as possible.  You should arrange a time for an inspector to attend the property when it is suitable for the sellers to provide access to the property. Liaise with the real estate agent to arrange a suitable day and time.

              Once the inspection is done, most inspectors will give you a short verbal run down of the property. They will then forward you a written report.  Be patient as this takes time for them to write up (generally 24 hours following inspection).

              It’s important to have this inspection done as soon as possible as issues may arise in the report that you may want to negotiate on.

              If you want to negotiate under the building and pest condition on a contract, you need to provide your conveyancer with a copy of the report and detail in writing (email) exactly what the issues are and what you want the seller to do about it. Once they have that information, your conveyancer will contact the agent and the seller’s conveyancer to begin negotiations.

              Negotiations can take days or even weeks to resolve and generally take one of two forms: either a price reduction or a request for repairs. If you request a price reduction this means you are willing to accept the property as is, if the seller agrees to reduce the purchase price by an agreed amount. This reduction will then be accounted for at settlement. If you request repairs be done by the seller, they need to undertake these repairs/works prior to settlement and provide you with a copy of the invoices showing the work was completed by suitably qualified tradesperson.

              Once you satisfy the building and pest condition, no further negotiations take place. So, you should ensure everything is agreed in writing before your condition date under the contract.

              Special conditions can take many forms. They can be for due diligence (generally when you need further information on the property because you are wanting to do something like build), or for when the seller needs to do something prior to settlement (repair something broken or replace something in the property), concurrent settlement (of your sale property) etc. There are many special conditions that can be written into a contract of sale.

              You should discuss these with your conveyancer prior to signing a contract containing special conditions to ensure you are aware of their implications during the sale process.

              Generally, settlement date is listed in the contract as 30 days from the date of the contract. When it comes time for your contract to settle you need to ensure you are ready.

              As a buyer you need to ensure:

              • Your financier is ready to provide funds.
              • Any extra funds you are putting into the purchase are with your financier or conveyancer.

              As a seller you need to ensure:

              • Your mortgagor (if any) is ready to release your mortgage on the property.
              • You are packed up as you need to be out of the property by settlement time.
              • You have completed any repairs under negotiations made during the process of the contract.

              What happens if you don’t meet a condition by its due date?
              This is a question that not many people ask, but all parties involved with a sale contract should. As a purchaser, if you miss a deadline, you give the seller an opportunity to terminate the contract. Under REIQ contracts, a condition is not assumed satisfied simply because the due date has passed. All conditions are due by 5pm on the due date.

              If the due date passes and a condition has not been satisfied, then the first email received by either party is taken to have precedence, that is, if the purchaser doesn’t satisfy the building and pest condition by 5pm on the due date, then the seller is within their rights to terminate. If you have your conveyancer send an email at 8:31am the following morning to satisfy, but they already received an email from the seller’s conveyancer terminating the contract prior to this time, the contract will be terminated. If they haven’t received any email, then your satisfaction email is taken to have precedence and the contract is still on foot or valid.

              If you are still in negotiations on a condition and the due date is looming, you need to request an extension of that condition prior to 5pm on the due date. Please note that until the seller agrees in writing to that extension, at any time between 5pm on the due date and receipt of that extension agreement, the seller can terminate the contract.

              This is why it is extremely important to start on contract conditions immediately after executing the contract. This allows enough time to negotiate, extend and receive a response before the due date.

              Searches
              As a seller, you don’t need to obtain any searches. It is the purchaser’s responsibility to obtain the searches required to complete settlement. Sometimes you may be asked to provide copies of your latest rates and water searches to assist in a quick settlement.

              As a purchaser, there are a couple of standard searches that you need to obtain so your conveyancer can adequately prepare for settlement. Upon your instruction, your conveyancer will order searches. These standard searches include:

              • rates
              • title
              • special water meter read
              • land tax clearance certificate
              • body corporate (if applicable).

              There are many other searches you can obtain in addition to the required searches. Depending on what you want to do with the property, you may wish to obtain further searches.

              For example, if you want to dig in the yard to build a shed you will most likely need to get a sewerage and drainage search. If you are buying a property with a pool, you’ll want to do a pool register search. If you know there is development in the future that might affect you at the property, you could seek a copy of the Department of Transport and Main Roads search.

              A due diligence special condition is inserted as a special condition when there are specific searches that you want to get and if the result is unsatisfactory to you as the purchaser, you may wish to terminate the contract. These generally occurs in sales where the purchaser intends to demolish and rebuild on the property.

              In a standard purchase, if you don’t obtain the above standard searches, you are putting yourself at risk of having to pay outstanding fees. These searches advise what has/hasn’t been paid for each service. For example, there might be outstanding land tax payable on a property, but if you as the purchaser don’t obtain the search to find out and subsequently request this amount be paid by the seller at settlement, then you become responsible for paying this amount. This is the same for outstanding rates, water, and body corporate bills.

              Chattels/fixtures
              The general rule to determine whether an item is a fixture or a chattel is to consider the degree to which that item is affixed to the property. For example, if you must unscrew something which will damage what it is screwed into to remove the item, it is generally considered a fixture.

              There is a specific section on an REIQ contract where both the buyer and seller need to write down what will be staying/leaving the property upon settlement.

              If you are expecting to take anything as a seller, include it in the contract.

              If you are expecting anything to stay as a purchaser, include it in the contract.

              The rule is that any fixtures are required to stay with the property and any chattels are required to be taken away following settlement unless specified in the contract.

              General examples of fixtures:

              • carpets
              • blinds
              • pool filter
              • solar panels
              • clothesline.

              General examples of chattels

              • fridge
              • washing machine
              • pot plants
              • television.

              Remember: it all comes down to the degree of affixation. If in doubt, include it in the contract.

              These are just some of the common mistakes that agents, buyers and sellers make on a contract of sale/purchase. To avoid these pitfalls, remember that the more information you put into a contract, the safer and easier the transaction will be. If you want to include special conditions, discuss it with your lawyer or conveyancer prior to signing the contract to ensure it gives you the protection you want.

              Let us help you avoid these pitfalls
              At Cornerstone Law Offices, we are a full-service, general practice law firm. We specialise in Family Law, but also practice in property, crime and traffic, migration and wills and estates. We pride ourselves on providing our clients with the highest quality of service to assist them in any matter they may experience in their lives. We have specialist lawyers in all areas of law, with offices in North Lakes, the Brisbane CBD, Logan and the Gold Coast. We can be contacted on 07 3806 4354 or email info@cornerstonelawoffices.com.au

              What happens to your assets if you die without a will?

              Read about what will happen to your assets if you die without a Will.

              If you die without a will, you are said to have passed away ‘intestate’. This means your estate (your assets) will be administered and distributed according to Queensland’s laws of intestacy.

              Having a will allows you to legally protect your spouse, children, other family members and your assets. It also allows you to appoint an executor to administer your estate and to have control over how you want your estate to be distributed.

              What is an asset?

              An asset is anything you own that has a monetary value. An asset can be the home you live in, other properties you own, motor vehicles, investments, art collections, personal belongings, cash, bank accounts balance, superannuation, shares, and the list can go on. Your estate lawyer will be able to help you identify your assets during your estate planning discussion.

              What makes a will current and valid?

              A will document the wishes you want to come into effect when you die. A valid will is your last written wish which is witnessed by two people while you have full mental capacity. All three parties need to be physically present to sign and witness the document. Your lawyers can also witness the documents. The costs of administering an estate where there is a current and valid will can be significantly less than where there is no will, or where the will is not valid.

              Who administers my estate?

              If you pass away intestate, an ‘eligible person’ must apply to the Court for a grant of Letters of Administration enabling them to become the legal representative of your estate. This grant will appoint someone as the administrator of your estate so they can deal with your assets (i.e. bank accounts etc) to finalise your estate.  The administrator will be responsible for paying off debts and ensuring the estate is divided appropriately in accordance with the intestacy rules.

              In order of priority, the following people are eligible to apply to the Court to be appointed as the administrator of your estate if you die without a will:

              1. surviving spouse (including a de facto partner)
              2. children
              3. grandchildren or great-grandchildren
              4. parents
              5. brothers and sisters
              6. nephews and nieces
              7. grandparents
              8. uncles and aunts
              9. first cousins
              10. anyone else the court may appoint.

              How will my assets be distributed?

              Part 3 of the Succession Act 1981 (Qld) sets out the entitlements of the next of kin of an intestate person. How an intestate estate is distributed depends on the circumstances of the deceased.

              If you pass away intestate, your estate will be distributed to the closest next of kin, first being your spouse (including a de facto partner) and then your children.

              If at the time of passing you had a spouse, with no children, then the whole estate will go to the spouse.

              If you had a spouse, and have children, then your spouse will receive the first $150,000 of the estate and all household goods. The remainder will then be split equally between the spouse and your children.

              If you are single and have children, the children will receive the balance of the estate in equal shares.

              If you have neither a spouse nor children, then the estate will be distributed to the following people in the following order:

              1. parents
              2. siblings, nephews and nieces
              3. grandparents
              4. uncles, aunts and first cousins
              5. The Crown.

               

              Cornerstone Law Offices can help you with all of your needs in regards to wills & estate planning and estate administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).

              What to look for when engaging an estate administration lawyer

              Wills and estate administration is a highly litigated area of law requiring solicitors to be extremely vigilant.  A solicitor failing to ask a relatively mundane question can lead to terrible consequences for a client and beneficiaries of a will such as a beneficiary not acquiring their beneficial interest or ending up in costly litigation.

              The law is always changing

              Estate laws are constantly changing because of new court decisions and amendments to old provisions. This area of law intersects with multiple other areas of law. For example, an ex-spouse may have a claim to the testator’s estate pursuant to family laws; a beneficiary may not be allowed to acquire corporate interests without having a shareholder vote pursuant to corporation laws, or a beneficiary may end up having to record his/her inheritance as an income for the year causing him/her to pay more capital gains tax pursuant to tax laws.

              What to expect from your solicitor

              When taking instruction, a solicitor should:

              • make detailed notes
              • determine and review any previous wills
              • determine the assets/liabilities/creditors
              • determine locations, identities and any aliases of appointers, trustees and beneficiaries
              • investigate the client’s capacity and level of urgency to make a will
              • verify the types of title ownership over assets
              • advise the client on the rule of ademption and pecuniary legacies
              • advise the client to speak to an accountant in relation to tax consequences
              • provide advice on the best and worst outcomes
              • ask probing questions to investigate the client’s family structure, make sure the estate is solvent, funeral arrangements, superannuation, life insurance, discretionary trusts, companies, enduring Power of Attorney, Advance Health Directives
              • advise on minimising risks from potential people having a claim to their estate regardless of being a beneficiary named in the will.

              Solicitors are officers of the Court
              As an officer of the Court, solicitors have a duty to collect and record all evidence that is relevant, not only evidence which may support the validity of the will, but also evidence that may cast doubt upon it. Solicitors must strive to remove ambiguity from wills and record all instructions and evidence. Where a person lacks testamentary capacity, s.21 Succession Act 1981 (Qld) may allow the Court to authorise a will to be made, altered or revoked on behalf of the incapacitated person.

              Cornerstone Law Offices can help you with all yours and your loved one’s Wills & Estate Planning and Estate Administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).

              GPS tracking as a bail condition

              As of 31 March, 2018 Queensland courts can now compel a person, accused of committing serious domestic violence offences, to be fitted with a GPS tracking device, as a condition of their bail.

              This initiative was one of the recommendations of the report entitled, ‘Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland’.

              The Court can impose this bail condition on any person, who might be granted bail. It is not specifically restricted to domestic violence-related offences.

              The fundamental purpose of fitting the tracking device to a person’s ankle, as a condition of their bail, is to allow police to locate and monitor the wearer twenty-four hours a day, seven days a week. Police will be able to know where and when the wearer goes to a location and it is regarded as a deterrent so that the wearer will not further breach an existing protection order, such as one providing an exclusion zone to protect the alleged aggrieved.

              This tracking device could be fitted to a person, merely on the word of one person against their partner or former partner, without evidence having been formally tested by way of a hearing.

              It must be said, the fitting of the device alone is not an adequate risk minimisation measure, it is merely a warning device and requires the Police or another authority to monitor the device and respond.

              As a further condition of the wearer’s bail, Police can enter their premises to inspect equipment necessary for the device’s operation, without a warrant or permission from the wearer. If the wearer is to undergo a medical procedure, he/she will have to seek a bail variation from the Court, prior to the procedure, to permit the removal of the device. The wearer has to also inform the Police, at least two business days before flying as to why they will be flying when they will be leaving and returning.

              These devices are currently in use, being fitted to parolees or prisoners, who are subject to a continuing supervision order, as a dangerous prisoner. The expansion of the program means, people on bail, not yet convicted of having committed any offence could be required to wear the same, often visible device.

              These devices are not inexpensive. In 2017 the Queensland government committed $265 million dollars over six years to fund the tracking of 500 parolees and 91 high-risk sexual offenders. More of these devices will need to be purchased and maintained as the program is extended to include wearers, who are required to wear the devices as a condition of their bail.

              These devices are not without problems in operation. GPS tracking relies on line of sight to several satellites, and various environmental factors can adversely impact on the signal quality leading to a loss of signal. Wearers must regularly charge the device, at least two hours of continual charging daily and carry their mobile telephones to resolve technical issues when required.

              If you have been charged with a serious domestic violence offence, Cornerstone Law Offices can help.

              For more information on how we can help you, contact Cornerstone Law Offices on:

              Phone: 1300 267 637

              info@cornerstonelawoffices.com.au