Property Settlement for De Facto

property settlement for de facto

Until recently the law governing defacto relationships was vague and confusing to say the least but now there is new legislation in the Queensland Property Law Act which will hopefully make things easier when defacto couples separate, with regard to property settlement.

One plus is that defacto couples in Queensland will now have easier access to the Courts to settle their disputes and achieve an amicable property settlement outcome. Previously, a defacto spouse generally had to rely on the law of trusts to establish a claim on property which was not registered in his/her name. The new Legislation is similar to the law governing division of property for married couples.

Who is a defacto spouse? The Act describes a defacto spouse as “one of two persons, whether of the same or the opposite sex, who have lived together as a couple”.

The first thing that you will notice is that the Act covers same sex couples.

Two people are a couple if they have lived together on a genuine domestic basis, in a relationship based on intimacy, trust and personal commitment to each other. Therefore, two people living together merely as flatmates cannot be considered as living in a defacto relationship and cannot come within the Act.

As Brisbane’s experts in Estates, we’re here to help you on your journey.

 

Questions?

If you have any questions about this blog post, do not hesitate to contact McLaughlin & Associate Lawyers via call or email.

Alternatively, you may visit our office in Springwood.

Buying a Home and Claiming PPR

Buying a Home and Claiming PPR

 

PPR advice from the leading solicitor in Springwood

When buying a home to live in you are entitled to claim a Principal Place of Residence concession whereby you pay stamp duty at a lesser rate.  In order to qualify for this concession you must sign a declaration and in that declaration are one or two points which are often overlooked by buyers (this happens frequently when buyers don’t ask the advice of a solicitor in Springwood).

Firstly, you cannot “dispose” of the land or the residence, lease or otherwise grant exclusive possession of part or all of the property to another person if you are claiming the First Home or Principal Place of Residence concession.  This also may include renting out a room within the home.  There have been cases where a buyer, in order to help meet the mortgage payments has rented out a bedroom to a friend and that has been held to be “disposing” of part of the residence.

Secondly, to qualify for the stamp duty concession you must occupy the home within twelve (12) months of the settlement date. This time limit is strict, there is no way around it.  The seller can continue to occupy the property after settlement provided they vacate the premises within six (6) months. If the property is tenanted at the time of purchase then the existing tenants can continue to occupy the property after the settlement date provided they vacate at the end of the term of their lease or within six (6) months of the settlement date, whichever is first to occur.  It is important to note that the lease arrangement had to be in place prior to the settlement date and that it cannot be renewed or extended.

We had a case recently where a client failed to qualify because she didn’t take occupation within the time period and had to pay an additional $15,000 in stamp duty.

Be very careful when signing the Form 2.1 Declaration.  Read it carefully and make sure you understand what you are signing and that you are going to be able to meet the criteria. Your best step is to speak to your solicitor in Springwood who can guide you through the process.

The Pole Dancer and the Prenup

The pole dancer and the prenup

Prenup agreements are now part and parcel of the Australian Legal Industry whereas they used to be something you would only read about in the Hollywood tabloids.  However, amongst the legal fraternity there has been growing fears as to how watertight these agreements are.  Many lawyers are now worried that they themselves will be sued by disgruntled clients whose agreements haven’t stacked up in the eyes of the Court.

The Sun-Herald has reported that thousands of pre-nuptial agreements may be ruled invalid if one man’s mission to extricate himself from a multi-million dollar payment to the pole dancer he married is successful.

Lawyers are closely watching what is known in family law circles as “the pole dancing case” for its potential to disrupt every agreement signed since 2004 amid claims the legislation surrounding pre-nuptial agreements is in “disaster territory”.

The man, who was given the court pseudonym of Mr Wallace, is challenging his pre-nuptial agreement on several grounds, including that the law governing such agreements is faulty.

Mr Wallace became besotted with pole dancer Ms Stelzer after meeting her at a Sydney club around the time he separated from his first wife. They married seven years later in 2005.

The parties entered into a pre-nuptial agreement that provided that Mr Wallace would pay Ms Stelzer $3.25m if their relationship broke down within four years. They separated less than two years after they married.

Mr Wallace, who has net assets of over $16m, is now claiming the agreement is invalid. He claims that Ms Stelzer, who has just over $10,000 in assets, behaved fraudulently when she professed before the marriage that she loved him, wanted to have children with him, and spend the rest of her life with him.

Mr Wallace also provides that his original solicitor did not give him proper advice on the advantages and disadvantages of entering the agreement. His current solicitor, Trevor Hall, asserted that the weakness of the legislation meant no financial agreement signed between couples was safe. “Every binding financial agreement ever entered into is at some risk of being set aside if years later a spouse wants to suggest that the advice they received was not proper legal advice”, Mr Hall said.

In 2004, amendments were made to the Family Law Act that required solicitors to certify they had taken certain steps to ensure their clients understood their agreements. This resulted in a wave of litigation with people attempting to avoid their obligations on the basis that their lawyers had not followed those steps meticulously. In 2010, amendments were made to the Act relaxing the wording.

Mr Wallace claims the changes should not apply in his matter retrospectively as that is unconstitutional.

The appeal has alarmed the Attorney-General for its potential to affect thousands of agreements. It has appointed Senior Counsel to intervene in the matter, joining Ms Stelzer’s barrister in maintaining the agreement is valid.

Family lawyer Duncan Holmes said more people were challenging their agreements on the basis of inadequate legal advice and lawyers were concerned about their liability. “The legislation is in disaster territory”, Mr Holmes said. “Well intentioned legislation is getting corrupted and lawyers are running scared”.

In 2011 His Honour Justice Benjamin upheld the validity of the pre-nuptial agreement saying that Mr Wallace’s case was coloured by criticism of Ms Stelzer, whose evidence he preferred. “At many levels this criticism seemed to endeavour to demean her and their relationship, bearing in mind the wife’s initial occupation and the circumstances of their meeting”, His Honour said.

Mr Wallace has appealed to the Full Court of the Family Court of Australia.

 

As Brisbane’s leading experts in Family Law, we’re here to provide you guidance and equip you with what you need to know in prenup agreements.